Citation Nr: 18155861 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-30 465 DATE: December 6, 2018 ORDER Entitlement to a rating in excess of 20 percent for a right ankle disability is denied. For the period prior to August 22, 2018, entitlement to a rating in excess of 20 percent for pes planus of the right foot is denied. For the period since August 22, 2018, entitlement to a 30 percent rating for pes planus of the right foot is granted. Effective from August 22, 2018, entitlement to a separate, noncompensable rating for hammertoe of the right foot is granted. Entitlement to a rating in excess of 30 percent for scars on the right foot is denied. New and material evidence not having been submitted sufficient to reopen a claim of entitlement to service connection for pes planus of the left foot, the claim is denied. Entitlement to service connection for a heart disorder other than hypertension is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for a prostate disorder is denied. Entitlement to service connection for chronic idiopathic urticaria is denied. Entitlement to service connection for a sleep disorder is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service connected pes planus of the right foot is remanded. Entitlement to service connection for memory loss is remanded. Entitlement to service connection for hammertoe of the left foot, to include as secondary to the service connected pes planus of the right foot is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) as due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s right ankle disability is manifested by decreased motion and pain, but there is no evidence of ankylosis at any point during the appeal. 2. For the period prior to August 22, 2018, the Veteran’s pes planus of the right foot is characterized by characterized by pain on use and manipulation, swelling, and characteristic callouses. 3. Since August 22, 2018, the Veteran’s pes planus of the right foot is characterized by pain on use, pain on manipulation, swelling, characteristic callouses, extreme tenderness of the plantar surface, no relief of the Veteran’s symptoms through the use of arch supports or orthotics, objective evidence of marked deformity and pronation, and marked inward displacement and severe spasms of the Achilles tendon. 4. Since August 22, 2018, the Veteran received a diagnosis of hammertoe of the right foot. 5. The evidence of record does not show that the Veteran’s scars are deep and nonlinear covering an area of 144 square inches or greater; or, that at least one scar is both painful and unstable. 6. The RO most recently denied the Veteran’s claim of entitlement to service connection for pes planus of the left foot in a May 2004 rating decision. The Veteran perfected an appeal of this claim to the Board, however, he withdrew his appeal during an October 2008 videoconference hearing that was memorialized on the record. As such, the May 2004 rating decision is the prior final decision of record. 7. Evidence added to the record since the May 2004 rating decision is either cumulative or redundant of evidence previously considered, and does not relate to an unestablished fact necessary to substantiate the claim for service connection for pes planus of the left foot. 8. The competent, probative evidence of record fails to relate a heart disorder, claimed as an enlarged heart, to a service-connected disability. 9. The competent, probative evidence of record fails to relate hypertension to a service-connected disability. 10. The competent, probative evidence of record fails to relate sleep apnea to a service-connected disability. 11. The competent, probative evidence of record fails to relate an enlarged prostate to a service-connected disability. 12. The competent, probative evidence of record is against finding that the Veteran has chronic idiopathic urticaria due to a disease or injury in service, to include a specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 2. Prior to August 22, 2018, the criteria for a rating in excess of 20 percent for pes planus of the right foot have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a. Diagnostic Code 5276 (2017). 3. Since August 22, 2018, the criteria are met for a rating of 30 percent for pes planus of the right foot. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a. Diagnostic Code 5276 (2017). 4. Effective from August 22, 2018, the criteria are met for a separate, noncompensable rating for hammertoe of the right foot. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a. Diagnostic Code 5282 (2017). 5. The criteria for a rating in excess of 30 percent for scars of the right foot are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.118, Diagnostic Code 7804 (2017). 6. The May 2004 rating decision which denied entitlement to service connection for pes planus of the left foot is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 7. New and material evidence has not been received in order to reopen the claim of entitlement to service connection for pes planus of the left foot. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017). 8. The criteria for service connection for an enlarged heart are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 9. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 10. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 11. The criteria for service connection for an enlarged prostate are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 12. The criteria for service connection for chronic idiopathic urticaria are not met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1994 to August 1995. In June 2018, the Veteran and his spouse testified before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been reviewed and considered with the evidence of record. Increased Ratings Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012). Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. The Court has held that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (the Court noted a distinction between claims stemming from an original rating versus increased rating). See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Disabilities of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. 1. Entitlement to a rating in excess of 20 percent for a right ankle disability A June 2011 rating decision notified the Veteran that his disability rating would be rated at 20 percent, effective from September 1, 2011, as the period for convalescence, based on 38 C.F.R. § 4.30, where he was rated 100 percent, would end. Notably, the Veteran has appealed the currently assigned 20 percent rating, but did not request an extension of the period of convalescence available under the provisions of 38 C.F.R. § 4.30. As such, evidence dated from the period in which the Veteran has been in receipt of a temporary total rating, from June 15, 2010 to September 1, 2011, will not be considered in adjudicating the claim since the Veteran was already receiving the maximum evaluation possible at those times. Therefore, the relevant temporal focus is from September 1, 2011, the date from which the 20 percent rating was effectuated. The Veteran’s right ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under this Diagnostic Code a maximum schedular rating of 20 percent is warranted for marked limitation of motion. Words such as “slight,” “moderate,” “marked,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Normal ranges of ankle motion are dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran was examined by VA in May 2012 to assess the current severity of his service-connected right ankle disability, diagnoses as degenerative disease of the right ankle. Range of motion findings revealed plantar flexion to 30 degrees, with pain beginning at 20 degrees; and, dorsiflexion to 10 degrees, with pain beginning at 10 degrees. While there was evidence of tenderness to palpation, shin splints, and malunion of os calcis or astragalus. However, the examiner specifically noted there was no evidence of ankylosis. Also of record are VA and private treatment records showing the Veteran has continued to report pain associated with his right ankle and seek treatment on a consistent basis throughout the appeal period. However, there is no evidence in the Veteran’s VA or private treatment records that show his ankle is characterized by ankylosis. Additionally, the Board notes the Veteran is in receipt of Social Security Administration (SSA) disability benefits. These records also include evidence of continued treatment for the right ankle disability. Nevertheless, the Board observes that VA is not bound by the findings of disability or unemployability made by other agencies, including the SSA. Collier v. Derwinski, 1 Vet. App. 413 (1991). Based on the evidence discussed above, the Board finds that at no time during the period on appeal is a rating in excess of 20 percent warranted. The May 2012 VA examination, VA medical records, or private medical records do not demonstrate ankylosis. The Board also considered the Veteran’s lay statements regarding the functional impact of his service-connected right ankle disability as both he and his spouse testified to during the June 2018 Board hearing, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and these statements are consistent with the medical evidence of record. To the extent that the Veteran or his wife argue his symptomatology approximates symptoms warranting a rating in excess of 20 percent, such as ankylosis, these statements must be weighed against the other evidence of record, and are outweighed by the examination findings of a trained health care professional. The evidence demonstrates that he complained of decrease motion and increased right ankle pain, but that there was no evidence of ankylosis. Furthermore, the May 2012 VA examination found ranges of ankle motion that indicated the absence of ankylosis. Based upon the evidence of record, the Board finds that the evidence shows that the Veteran’s right ankle disability was manifested by no more than marked limited ankle motion and that the maximum schedular rating based upon loss of motion was assigned. Therefore, the Board finds that the right ankle disability most nearly approximates the currently assigned 20 percent rating under Diagnostic Code 5271. Further, because the right ankle disability has been assigned the maximum rating based on limitation of motion, the DeLuca v. Brown criteria are not applicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also 38 C.F.R. §§ 4.40, 4.45, 4.59; 8 Vet. App. 202, 206-07 (1995). The only diagnostic code with a rating in excess of 20 percent is Diagnostic Code 5270, which requires a showing of ankylosis. As the evidence of record does not show that the Veteran has ankylosis in the right ankle, there is no basis upon which to assign a higher rating. See Diagnostic Codes 5270. The Board finds that the preponderance of the evidence is against the assignment of any higher rating and the claim for an increased rating is denied. 38 U.S.C. § 5107(b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a disability rating in excess of 20 percent for pes planus of the right foot The Veteran is seeking a rating in excess of 20 percent for his service-connected pes planus with plantar flexion deformity of the first metacarpophalangeal (MP) joint of the right foot. In this respect, the Veteran filed his claim for an increased rating for this disability in July 2011. A November 2012 rating decision continued the 20 percent rating. As such, the relevant temporal focus for this increased rating claim is from July 2010. The Veteran’s right foot disability is rated pursuant to Diagnostic Code 5276 for pes planus. Under Diagnostic Code 5276, a 20 percent rating when pes planus is unilateral and severe, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities, and a 30 percent rating when it is unilateral and pronounced, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the Achilles tendon manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. Diagnostic Code 5282 provides ratings for hammertoes. A noncompensable rating is warranted when single toes are affected. A 10 percent rating is warranted when all toes are affected unilaterally without claw foot. 38 C.F.R. § 4.71a. Diagnostic Code 5284 provides ratings for residuals of other foot injuries. Moderately severe residuals of foot injuries are rated 20 percent disabling, and severe residuals of foot injuries are rated 30 percent disabling. 38 C.F.R. § 4.71a. The Board notes that words such as ‘severe,’ ‘moderate,’ and ‘mild’ are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. As an initial matter, the Board notes the Veteran’s right foot disability was initially characterized as pes planus of the right foot, effective from January 2004. A December 2009 x-ray report also showed mild to moderate first metacarpophalangeal (MP) joint osteoarthritis. During the December 2010 VA examination, there was evidence of weakness, antalgic gait, tenderness in the heel/plantar area, midfoot malalignment, and inward bowing of the Tendo Achillis. There was no evidence of abnormal weight bearing, pronation, or pain on manipulation, but the weight-bearing line was found to be over the great toe. X-rays were again taken that confirmed the current diagnosis of right foot pes planus. The Veteran was next examined by VA in May 2012. At that time, the examiner confirmed the diagnosis of pes planus of the right foot and plantar flexion deformity of the first MP joint. During the examination, pain on use, pain on manipulation, swelling, and characteristic callouses were noted. The Veteran reported that his symptoms were not relieved by arch support and there was extreme tenderness of the plantar surface. Decreased longitudinal arch height on weight-bearing was noted, but there was no evidence of marked pronation or marked deformity of the foot. Further, there was no inward bowing, marked inward displacement, or severe spasming of the Achilles tendon. The examiner also noted that the Veteran requires the regular use of a brace. The Veteran was most recently examined by VA in August 2018. At that time, the Veteran reported his right foot has increased in pain, stiffness, numbness, and is cold to the touch. The Veteran stated he is unable to wear shoes for more than four hours and reported some swelling. He stated he uses a brace as needed. Further, the Veteran reported flare-ups that impact his ability to work, walk, run, or play with his grandchildren. Upon physical examination, the examiner found pain on use, pain on manipulation, swelling, characteristic callouses, and extreme tenderness of the plantar surface. There is no relief of the Veteran’s symptoms through the use of arch supports or orthotics. Additionally, there is decreased longitudinal arch height on weight-bearing, and objective evidence of marked deformity and pronation. The examiner further noted a diagnosis of bilateral hammertoe causing alteration of the weight bearing line. Finally, while there is no inward bowing of the Achilles tendon, the Veteran does have marked inward displacement and severe spasms. In addition to the physical findings, the examiner noted that the right foot pes planus resulted in pain on movement, pain on weight bearing, deformity contributing to functional loss. During a flare-up, the Veteran reported that his coordination is off and he must be careful. After repeated use over time, the pain is aggravated and the Veteran must sit. During his Board hearing testimony, the Veteran identified right foot pain upon use since service. Finally, the VA and private treatment records do note his continuous treatment for and complaints of pain associated with the right foot disability. The findings contained in these treatment records are included in the VA examinations xconducted during the course of the Veteran’s appeal. The Board finds that prior to the August 22, 2018 VA examination, the evidence of record does not warrant a rating in excess of the currently assigned 20 percent rating for pes planus of the right foot. In this respect, the right foot disability was characterized by pain on use and manipulation, swelling, and characteristic callouses. However, while the Veteran reported that his symptoms were not relieved by arch support and there was extreme tenderness of the plantar surface, the evidence does not show there was marked pronation or marked deformity of the foot, or inward bowing, marked inward displacement, or severe spasming of the Achilles tendon. Further, there is no indication of functional impairment prior to the August 2018 examination sufficient to warrant a rating in excess of 20 percent. In fact, the May 2012 VA examiner found no evidence of functional impairment and the December 2010 VA examiner noted mild functional impairment in the limitations of walking and pain. As such, his disability does not approximate the criteria for a higher 30 percent evaluation based on severe bilateral pes planus. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. However, as the August 2018 VA examiner noted, the Veteran’s pes planus of the right foot with plantar flexion deformity has increased in severity. The Board finds that effective from August 22, 2018, his right foot disability warrants the higher 30 percent rating for unilateral pronounced pes planus as characterized by pain on use, pain on manipulation, swelling, characteristic callouses, extreme tenderness of the plantar surface, no relief of the Veteran’s symptoms through the use of arch supports or orthotics, objective evidence of marked deformity and pronation, and marked inward displacement and severe spasms of the Achilles tendon. The 30 percent rating is the highest rating available under Diagnostic Code 5276, and higher than any other diagnostic code pertaining to the foot. The Board has further considered the criteria of Diagnostic Code 5003 for degenerative arthritis, which is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. Under this code, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned with x-ray evidence of involvement of two or more major joints; a 20 percent rating is assigned with x- ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Here, there is no basis of entitlement under that code for a rating higher than the 20 percent rating prior to August 22, 2018, or a rating higher than 30 percent rating since, based on limitation of motion as the Veteran’s pain on motion of the right foot is compensated by the criteria for Diagnostic Code 5276 for flat foot, and separate ratings may not be assigned for the same symptomatology. Thus, the Board finds a separate compensable rating under Diagnostic Code 5003 for the past diagnosis of degenerative joint disease of the right foot is not warranted. The Board also finds that a separate or higher rating is not warranted under Diagnostic Code 5284, which addresses other foot injuries either prior to or since August 22, 2018. Insomuch as the VA examiners indicated that the Veteran had a moderately severe to a pronounced foot disability, the pathology and symptoms related to such disability were not differentiated from pes planus with plantar flexion deformity of the first MP joint. The Board finds that aside from the Veteran’s symptomatology related to pes planus, to include a decreased longitudinal arch height on weight bearing, his foot complaints predominantly involve pain and limitations of function due to pain. The Board finds that these pain symptoms have specifically been addressed in the Veteran’s rating under Diagnostic Code 5276 which considers the presence of pain on manipulation and use. For these reasons, the Board finds that a separate rating may not be assigned based on symptoms of foot pain under Diagnostic Code 5284, as this would constitute impermissible pyramiding. Further, the Court has held that when a when a condition is specifically listed in the Schedule, it may not be rated by analogy under Diagnostic Code 5284. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Board notes that the Veteran’s foot disability falls under a specific diagnostic code, namely, Diagnostic Code 5276. The Board finds no basis to alternately consider the criteria of Diagnostic Code 5277 (bilateral weak foot characterized by musculature atrophy, disturbed circulation and weakness), Diagnostic Code 5278 (acquired claw foot or pes cavus), Diagnostic Code 5280 (hallux valgus), Diagnostic Code 5281 (unilateral hallux rigidus), or Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones). VA examinations show that the Veteran does not have bilateral weak foot, claw foot, pes cavus, hallux valgus, hallux rigidus, and x-rays do not reflect malunion or nonunion of the tarsal or metatarsal bones. However, as the August 2018 VA examination provided a diagnosis of hammertoe Diagnostic Code 5282 (hammer toe), the Board finds that a separate, noncompensable rating is warranted for this disability. The Veteran is not entitled to a rating of 10 percent as the evidence does not show all of his toes on the right foot are implicated in the diagnosis. Thus, resolving all reasonable doubt in the Veteran’s favor, a rating of 30 percent is warranted for the period from August 22, 2018. Further, a separate, noncompensable rating for hammertoe of the right foot is warranted. 3. Entitlement to a rating in excess of 30 percent for scars on the right foot The Veteran is seeking a compensable rating for scars on the right foot, currently rated at 30 percent pursuant to Diagnostic Code 7804. The Veteran filed his claim for an increased rating on July 18, 2011. Therefore, the relevant temporal focus is from July 18, 2010. Scars that, as here, do not impact the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805. Here, the Veteran is already in receipt of a rating higher than provided for under Diagnostic Code 7802, which has maximum ratings of 10 percent. Also, under Diagnostic Code 7804, the Veteran is receiving the maximum rating. As to 7805, there are no other disabling effects to be considered. Thus, the only other relevant Diagnostic Code for review is 7801. Under Diagnostic Code 7801, a 30 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 72 square inches (465 sq. cm.), but less than 144 square inches (929 sq. cm.). A 40 percent rating is assigned when a deep and nonlinear scar covers an area of 144 square inches (929 sq. cm.) or greater. A deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7804, a 30 percent rating is assigned for five or more scars that are unstable or painful. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. Thus, under this Diagnostic Code, the highest rating available is 40 percent if one of the scars is both unstable and painful. The Board also notes that, effective August 13, 2018, VA amended the regulations pertaining to 38 C.F.R. § 4.118, Diagnostic Code 7806, regarding the rating criteria for dermatitis or eczema. As the Veteran’s skin disability is restricted to scars not of the head, face, or neck, application of the new regulations are not implicated here. The Veteran underwent VA examinations pertaining to his scars on the right foot in December 2010, December 2012, and August 2018. The December 2010 VA examination revealed one post-operative scar. The examiner described the scar as hypertrophied, measuring 3 inches, and tender. As a result of this examination, the RO granted service connection for the scar and assigned a 10 percent rating pursuant to Diagnostic Code 7804. In the subsequent December 2012 examination, the examiner noted the existence of scars, multiple, on the right heel and ankle. Upon physical examination, the examiner noted 4 linear scars with additional superficial, non-linear scars on the right lower extremity. The approximate total area affected by the superficial, non-linear scars was 0.196 centimeters squared. There was no evidence of limitation of function or other complications/conditions associated with any of the scars to the right lower extremity. Further, the examiner noted that 5 or more of the scars were painful, but none were unstable, and none were both painful and unstable. Based on the results of this examination, the RO assigned the Veteran a rating of 30 percent, effective from July 18, 2011, the date of receipt of the claim for an increased rating. The Veteran was most recently examined by VA in August 2018 to determine the currently nature and severity of the service-connected scars. Upon physical examination, it was noted that the Veteran reported all the scars were painful but none were considered unstable, and none were considered unstable and painful. The total approximate area affected was 37.5 centimeters squared. The Veteran also reported that the scars on his right foot prevent him from wearing shoes for long periods of time. There were no other physical manifestations of the scars noted during the examination. Also of record are a significant number of SSA, VA, and private treatment records noting the presence of the Veteran’s scars to the right foot. However, none of these records indicate at least one of the scars covers an area of 144 square inches. Finally, the Board notes the Veteran testified that his scars are painful, a fact that has been consistently shown by the evidence of record. Notably, he is receiving the highest rating possible of 30 percent under Diagnostic Code 7804 to compensate for his pain. However, to receive a higher rating, his scars do not satisfy the criteria under Diagnostic Code 7801, which requires that the Veteran’s multiple scars on the right foot cover an area of 144 square inches. See Diagnostic Codes 7801. Given the criteria is not satisfied, the Veteran’s claim is denied for a rating higher than 30 percent. The Board has also considered whether staged ratings are appropriate in this case. The evidence of record shows that the symptoms of the scars of the right foot have not fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. New and Material Evidence 4. Pes planus of the left foot Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO first considered and denied the Veteran’s claim for service connection for bilateral pes planus in a July 1996 rating decision. The Veteran did not appeal that decision and it is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The RO again considered and denied the Veteran’s claim for service connection for bilateral pes planus in a May 2004 rating decision. During the pendency of the appeal, the RO granted service connection for pes planus of the right foot, but continued the denial of service connection for the left foot. The Veteran perfected an appeal to the Board, however, prior to a promulgation of that decision, the Veteran’s withdrew his claim regarding the left foot during his October 2008 videoconference hearing. As such, the May 2004 decision is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In the May 2004 rating decision, the RO denied reopening the claim on the basis that the Veteran had not submitted evidence that his pre-existing left foot pes planus was aggravated beyond the natural progression as a result of his military service, which was the basis of the July 1996 denial. In fact, the only evidence submitted by the Veteran were copies of his service treatment records, which were already of record and considered in the July 1996 rating decision. The evidence received since the May 2004 rating decision includes significant additional VA and private treatment records dated through 2018; reports of June 2008, May 2012, and August 2018 VA examinations that include consideration of the left foot; the June 2018 Board hearing transcript; and, additional lay statements from the Veteran and his spouse submitted in support of his claim. The Board notes the significant medical evidence does show the Veteran suffers from disabilities of the left foot that include pes planus and hammertoe (discussed in the remand section below), a fact which has not been disputed by VA at any point during the appeal process. However, the VA and private treatment records and various examinations of record do not show that the pes planus of the left foot was aggravated by the Veteran’s military service. In fact, the Veteran has not submitted any etiological opinions, to include from private physicians, that indicate a worsening as a result of his military service of the pre-existing pes planus of the left foot. Consequently, there is no evidence of record indicating the Veteran’s pes planus of the left foot was aggravated by his military service. As there are no new contentions or evidence to support this claim, the evidence added to the record is either cumulative, or unrelated to the claim. As new and material evidence has not been submitted, the claim is not reopened, and the appeal as to this issue is denied. Service Connection 5. Enlarged heart, enlarged prostate, hypertension, and sleep apnea The Veteran is seeking service connection for an enlarged heart, enlarged prostate, hypertension, and sleep apnea that he states are proximately due to his service connected disabilities. Specifically, in his December 2013 Notice of Disagreement, the Veteran stated that he did not begin having problems with these claimed disorders “until [the] surgeries and medications of all [his] service connected disabilities.” When determining entitlement to service connection, the Board is required to consider all theories of entitlement reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (the Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence). Here, however, this Veteran’s claims are entirely predicated on the notion these additional disorders are secondary to his service-connected disabilities of the right ankle, right foot, scars associated with the surgeries pertaining to the right ankle and right foot, and keloid scars. He does not allege, and the evidence does not otherwise suggest, that any of these disorders were directly or even presumptively incurred in service. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). As such, the Board finds that the Veteran is seeking entitlement to service connection for these disorders on a secondary basis only. With regard to secondary service connection, a disability can be service-connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may also be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In short, in order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board concludes that, while the Veteran has current diagnoses of sleep apnea, hypertension, left atrial enlargement (enlarged heart), and a minimally enlarged prostate, (see VA treatment records problems list), the preponderance of the evidence is against a finding that any of these disorders are proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability or disabilities. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The available VA and private treatment records show the Veteran has received treatment for the claimed disorders throughout the appeals period. Importantly, these treatment records do not contain any etiological opinions attributing these to a service-connected disability or treatment for a service-connected disability, to include as due to medications prescribed for service-connected disabilities. Based on the evidence above, the Board finds that service connection is not warranted for any of the claimed disorders. Specifically, the evidence fails to show that the Veteran’s disorders of sleep apnea, hypertension, left atrial enlargement, and a minimally enlarged prostate are proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability or disabilities, to include as a result of surgeries, treatment, or medications for the service-connected disabilities. In fact, the only evidence in support of his claims are the Veteran and his spouse’s own statements, submitted in writing during the pendency of this appeal and orally during the June 2018 Board hearing, that his current disorders are proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability or disabilities. The Veteran and his spouse are certainly competent to state when he was initially diagnosed with the various disorders, or when physical symptoms presented themselves, such as pain or difficulty sleeping. Lay persons, however, are not competent to attribute these disabilities to his military service. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran and is spouse are also not competent to state what caused any associated underlying symptoms, where it has not been shown that he has a medical background to provide an opinion as to such. The Federal Circuit has recognized the Board’s “authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.” Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board acknowledges that the Veteran has not been provided VA compensation examinations addressing his service connection claims of these disorders. Regulations provide that VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In service-connection claims, such as is the case here, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). In this case, examinations are not necessary to adjudicate the Veteran’s service-connection claims for a sleep disorder, hypertension, an enlarged heart, or an enlarged prostate. As noted in the discussion above, there is no evidence attributing these claimed disorders to his service-connected disabilities. Therefore, a remand requesting examinations is not required. 38 C.F.R. § 3.159(c)(4); McLendon, supra. Accordingly, service connection for sleep apnea, hypertension, left atrial enlargement, and a minimally enlarged prostate are not warranted because the Veteran has not satisfied the nexus requirement of attributing the current disorders to his service connected disabilities on a secondary basis. See 38 C.F.R. § 3.310 (2017). In reaching the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine does not apply. 38 U.S.C. § 5107(b) (West 2012). The claims of entitlement to service connection are denied. 6. Chronic idiopathic urticaria The Veteran contends that he suffers from chronic idiopathic urticaria that is due to or caused by his military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of chronic idiopathic urticaria, (see VA treatment records problems list), the preponderance of the evidence weighs against finding that the Veteran’s urticaria began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, the Veteran’s service treatment records are completely silent for any in-service treatment, complaints, or diagnoses of urticaria. Additionally, while the available post-service VA and private treatment records show the Veteran has received treatment for this disorder during the appeals period, the records do not contain any etiological opinions attributing the diagnosed urticaria to the Veteran’s military service. The Veteran underwent a VA examination in June 2017 in order to determine the nature and etiology of his urticaria. The June 2017 VA examination confirms a diagnosis of urticaria and notes the Veteran reported that it began three to four years ago, with outbreaks occurring every month. At the time of the examination, the examiner indicated there was no rash present. An etiological opinion was not provided. In support of his claim, the Veteran submitted an August 2018 DBQ from a private physician. The physician noted the Veteran’s report of suffering from urticaria, but the Veteran reported the date of onset to be 1994, even though the Veteran himself admitted he was not diagnosed with the disorder at the time. There was no evidence of a rash at the time of the examination and the private physician also did not provide an etiological opinion. Based on the evidence above, the Board finds that service connection is not warranted for this disorder. Specifically, the evidence fails to show that the Veteran’s currently diagnosed urticaria began during service or is otherwise related to an in-service injury, event, or disease. The Board has also considered the Veteran and his spouse’s lay statements, submitted in writing during the pendency of this appeal and orally during the June 2018 Board hearing, that the diagnosed urticaria is related to an in-service injury, event, or disease. The Veteran and his spouse are certainly competent to state when he was initially diagnosed with disorder, or when physical symptoms presented, such as a rash. Lay persons, however, are not competent to attribute this disorder to the Veteran’s military service. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran and is wife are also not competent to state what caused any associated underlying symptoms, where it has not been shown that he has a medical background to provide an opinion as to such. In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records. However, the Federal Circuit also went on to hold in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Accordingly, service connection for urticaria is not warranted because the Veteran has not satisfied the nexus requirement of attributing the current disorder to his active service. See 38 C.F.R. § 3.303 (2017). In reaching the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. 38 U.S.C. § 5107(b) (West 2012). The claim of entitlement to service connection for urticaria is denied. REASONS FOR REMAND 1. An acquired psychiatric disorder, to include as secondary to the service connection pes planus of the right foot The Veteran seeks service connection for an acquired psychiatric disorder that he contends is due directly to his military experience or, alternatively, is due to or aggravated by his service-connected right foot pes planus disability. The Veteran was provided a VA examination in May 2018. The VA examiner provided a diagnosis of depressive disorder and ultimately concluded that this disorder was less likely than not proximately due to or the result of the service-connected pes planus of the right foot. Unfortunately, in rendering this opinion, the VA examiner did not also provide an opinion on whether the depressive disorder may have been aggravated by the service-connected right foot disability. As such, a new examination is warranted. 2. Entitlement to service connection for memory loss The Veteran is also seeking entitlement to service connection for memory loss. Here, the May 2018 VA examiner stated that a decision regarding the etiology of a memory disorder was deferred to neurology as it was outside of the examiner’s “scope.” Therefore, as the VA examiner’s request for a neurologist to render the opinion regarding memory loss was not rendered, it remains unclear whether memory loss is a symptom of the Veteran’s diagnosed depressive disorder, or is a separate and distinct disability for which service connection may be warranted. As such, the Veteran should be provided with an appropriate examination. 3. Entitlement to service connection for hammertoe of the left foot, to include as secondary service-connected pes planus of the right foot The Board notes that the Veteran filed a claim for service connection for a left foot disorder in July 2017. In the August 2018 VA examination, the VA examiner provided a diagnosis of hammertoe to the left foot. However, the diagnosed disorder of hammertoe is a separate and distinct disability and the AOJ has not previously considered whether it is due the Veteran’s military service or, alternative, due to or aggravated by the Veteran’s service-connected pes planus of the right foot. As such, a remand is warranted for an examination on this matter. 4. Entitlement to a TDIU Finally, because the above grant for a separate rating for hammertoe of the right foot and an increase for the pes planus disability of the right foot, and the remand for service for an acquired psychiatric disorder and memory loss could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of this claim is required. The matter is REMANDED for the following action: 1. Obtain any additional VA and private treatment records relevant to the remaining claims on appeal dated since September 2018. 2. Schedule the Veteran for a VA examination to determine the nature and etiology his diagnosed depressive disorder. The examiner is asked to provide the following opinions: (a.) Whether it is at least as likely as not any current depressive disorder, or any other identified psychiatric disorder, is due to or caused by the Veteran’s military service. (b.) Whether it is at least as likely as not that any current psychiatric disorder is either caused or aggravated by the service-connected right foot disability. The term “aggravation” means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for an appropriate VA examination with a neurologist (as specifically requested in the May 2018 psychiatric examination) to determine the nature and etiology of the Veteran’s claimed memory loss. The examiner is asked to address the following: (a.) Please determine whether the Veteran currently suffers from memory loss and, if so, to what degree. (b.) For any diagnosed memory loss, please state whether it is due to his diagnosed psychiatric disorder(s) or is a separate and distinct disorder. (c.) If, and only if, it is determined the memory loss is a separate and distinct disorder and not a symptom of a psychiatric disorder, please provide an opinion as to whether it is due to or the result of the Veteran’s military service. 4. Schedule the Veteran for a VA examination to determine the nature and etiology his diagnosed hammertoe of the left foot. The examiner is asked to provide the following opinions: (a.) Whether it is at least as likely as not the hammertoe of the left foot is due to or caused by the Veteran’s military service. (b.) Whether it is at least as likely as not the hammertoe of the left foot is either CAUSED OR AGGRAVATED by the service-connected right foot disability. The term “aggravation” means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Following the completion of the above requested development, schedule the Veteran for a VA examination to determine if it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran is precluded from substantially gainful employment on account of his service-connected disabilities alone and in combination. In making this determination, the person should take into account the Veteran’s education and work history, but may NOT consider the Veteran’s age or any impairment caused by nonservice-connected disabilities. 6. The Veteran should be informed that failure to appear for these examinations, without good cause, may cause his claim to be denied. See 38 C.F.R. § 3.655. All efforts to schedule the examination should be documented in the file. 7. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel