Citation Nr: 18158579 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 08-16 622 DATE: December 18, 2018 ORDER A rating of 30 percent for bilateral fallen arches with plantar fasciitis is granted from November 29, 2007 to June 27, 2012. REMANDED The claim of entitlement to a rating in excess of 10 percent for seborrheic dermatitis of the scalp is remanded. The claim of entitlement to a compensable rating for cervical human papillomavirus infection with cervical warts is remanded. The claim of entitlement to an initial compensable rating for lichen sclerosus of the vulva and labia majora is remanded. FINDINGS OF FACT 1. A claim for entitlement to an increased rating for bilateral fallen arches with plantar fasciitis was received by the VA on May 5, 2005. 2. There are no pending, unadjudicated claims for an increase for service-connected bilateral fallen arches with plantar fasciitis prior to May 5, 2005, and it is not factually ascertainable that the Veteran had bilateral and severe objective evidence of marked deformity, pain on manipulation and use, accentuated indication of swelling on use, and characteristic callosities prior to testimony upon hearing on November 29, 2007. 3. Resolving reasonable doubt in the Veteran’s favor, severe flat feet were demonstrated as of November 29, 2007. CONCLUSION OF LAW The criteria for an increased rating of 30 percent for bilateral fallen arches with plantar fasciitis are met as of November 29, 2007. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400; 4.71a, Diagnostic Code (DC) 5276 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1989 to September 1997. This case is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) In November 2007, the Veteran testified at a hearing before a Decision Review Office at the RO. In June 201, a videoconference hearing was held before the undersigned; a transcript of both hearings is included in the claims file. The multiple appeals addressed in this decision arose at different times. For efficiency and where appropriate, these appeals were combined. The issue of entitlement to a clothing allowance for the 2017 and 2018 calendar years will be addressed at a later time in a separate decision. In November 2017, the Board denied the Veteran’s claim for entitlement to a rating in excess of 10 percent for bilateral fallen arches with plantar fasciitis, prior to June 28, 2012. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Order, the Court granted the VA General Counsel’s and Appellant’s Joint Motion for Remand. The Board’s decision was vacated and the Veteran’s claim was remanded to the Board. The Order called for the claim to be remanded in that the Board misapplied the pertinent DC regarding flat feet, and also because the Veteran’s assertions as to the existence of callosities were not considered. Increased Ratings – In General Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2018). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2018). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Acquired pes planus (flatfoot), bilateral or unilateral, will be rated as noncompensable when mild, with symptoms relived by built-up shoe or arch support. This disability will be rated as 10 percent disabling when moderate, with the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet; as 30 percent disabling when bilateral 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 as 50 percent disabling when bilateral and pronounced, with marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276 (2018). Entitlement to a Rating in Excess of 10 Percent for Bilateral Fallen Arches with Plantar Fasciitis, prior to June 28, 2012. Service connection for the Veteran’s bilateral fallen arches was established upon rating decision in September 1998. A 10 percent rating was assigned. VA received a request for an increased rating on May 5, 2005. VA examination was conducted in April 2006. At that time, her plantar fallen arches appeared unremarkable. She did report pain on weight bearing. A May 2006 rating decision confirmed and continued the 10 percent rating for the bilateral foot disorder. At a personal hearing at the RO on November 29, 2007, the Veteran reported increased symptomatology from her bilateral foot condition. Specifically, she stated that her feet hurt “immensely” after walking long distances. It felt like she had “splinters” in the bottom of her feet. Manipulation of the feet resulted in pain in the arches. She experienced some foot swelling, and he had developed calluses on the ball areas of the feet. (Hrg. tr. at pgs. 2-3.) VA records show that when seen in November 2009, she was requesting some arch supports due to her flat feet. At the June 2010 Board videoconference hearing, the Veteran testified as to increased foot pain, to include a burning sensation. She had a bone spur and had recently received a cortisone shot for her pain. The shot had helped alleviate some of her pain. There was foot swelling, hammertoe, and calluses on the balls of her feet. (Hrg. tr. at pgs. 3-8.) A May 2010 private medical report was essentially negative as to the feet. Following VA examination on June 28, 2012, the Veteran’s 10 percent evaluation for her service-connected foot disorder was increased to 30 percent, effective June 28, 2012. Currently at issue is a rating in excess of 10 percent prior to June 28, 2012. Based on the evidence presented and a review of the Veteran’s history prior to June 28, 2012, an increase of 30 percent is warranted from November 27, 2007. It was on that date that the Veteran testified as to increased disability as to her bilateral foot disorder. Specifically, it is noted that prior to that date, upon VA examination in April 2006, the only complaint was pain upon weight bearing, and the fallen arches were described as unremarkable. However, as of her testimony on November 27, 2007, an increase in symptomatology was described. This exacerbation in symptoms was also reported in 2010 testimony and by VA exam. While a 2010 report was negative, resolving all reasonable doubt in the Veteran’s favor, it is found that she met the criteria for a 30 percent rating pursuant to DC 5276 as of her testimony on November 29, 2007. At that time, she reported increased foot pain, pain on manipulation, and characteristic callosities. It is the Board’s conclusion that these symptoms are best described as severe pursuant to DC 5276 for flat feet. She also gave consistent testimony in 2010 as to increased symptoms. Based on the medical and lay evidence presented, the criteria for a 30 percent rating were met prior to June 28, 2012. Specifically, the 30 percent rating criteria for the service-connected bilateral foot disorder were met as of November 29, 2007. Generally, the effective date can be no earlier than the date of receipt of the claim for increase. In this case, the earliest evidence of claim for an increased rating for pes planus is May 5, 2005. The Board has considered the exception to that general rule; however, the evidence does not demonstrate that it was factually ascertainable that the Veteran’s service-connected bilateral foot disorder was 30 percent disabling within the one year prior to that date. 38 C.F.R. § 3.400(o)(2) (2018). Indeed, the record does not show any relevant evidence within that timeframe that demonstrates the Veteran’s bilateral foot disorder manifested with symptoms indicative of a severe disability as described under the rating criteria. Thus, an effective date earlier than November 29, 2007, is not warranted. REASONS FOR REMAND Entitlement to a Rating in Excess of 10 Percent for Seborrheic Dermatitis of the Scalp; Entitlement to a Compensable Rating for Cervical Human Papillomavirus Infection with Cervical Warts; and Entitlement to an Initial Compensable Rating for Lichen Sclerosus of the Vulva and Labia Majora. Review of the record reflects that following VA skin examination in February 2017, the noncompensable rating in effect for seborrheic dermatitis of the scalp was increased to 10 percent. While a noncompensable rating in effect for cervical human papillomavirus infection with cervical warts was continued, service connection was established for lichen sclerosus of the vulva and labia majora, and a noncompensable rating was assigned. Subsequently, the Veteran submitted argument as to why each of her service-connected skin disorders should be assigned an increased rating. (See her September 2018 VA Form 9.) In general terms, she argued that the examiner noted that she was on clobetasol, a corticosteroid, for her skin condition on a systemic basis. (The fact that she is prescribed this corticosteroid cream is corroborated in the record.) Thus, she argues, a 60 percent rating is warranted pursuant to DC 7806 for her skin conditions. Moreover, she questioned why a compensable rating was not warranted for her newly established lichen sclerosus of the vulva and labia majora in that she took a daily medication to control this condition. (Her claim that the service-connected disorder of dermatitis should not be limited to just the scalp has previously been denied by the RO.) Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Such is the case here. VA examination of the Veteran’s skin conditions should be obtained as directed in the remand directives below. The matters are REMANDED for the following action: 1. Obtain any missing VA treatment notes and associate them with the claims file. Moreover, invite the Veteran to identify any additional medical providers who treated her for her various skin disorders. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 2. Following completion of the above, the Veteran should be scheduled for a VA examination or examinations in order to determine the severity of her service-connected skin disabilities and cervical human papillomavirus infection with cervical warts. After examining the Veteran and conducting any studies and/or tests deemed necessary, the examiner should fully describe all symptomatology and functional deficits associated with her disabilities. The examiner should attempt to differentiate between symptoms attributable to each condition. In describing the Veteran’s skin disorders, the description should include, based on 38 C.F.R. § 4.118, DC 7806, what percentage of the body is covered by dermatitis, and any other skin disorder identified as service related or indistinguishable from the service-connected disability of dermatitis. The examiner should determine whether the Veteran utilizes topical therapy “and/or” systemic therapy (such as corticosteroids or other immunosuppressive drugs) to treat her service-connected skin disorders, providing the duration of the therapy the Veteran has been treating the disorders (constant, near constant, not constantly, as well as during the past 12 months, six weeks or more, or less than six weeks). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith