Citation Nr: 1816005 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-02 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for left foot hammer toe second toe status post repair. 3. Entitlement to an initial compensable rating for service-connected scars. 4. Entitlement to a rating in excess of 30 percent for bilateral pes planus from April 1, 2016. 5. Entitlement to an effective date earlier than February 18, 2016, for the right fifth toe scar. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 7. Entitlement to an extraschedular rating. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to January 1977 and from November 1980 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2013 and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The issues of entitlement to service connection for low back disability, TDIU and extraschedular rating were previously remanded in a November 2015 Board decision for further development. The Board finds there has been substantial compliance with the prior remand and will proceed. The Board also notes that in addition to the issues noted on the cover page, in a February 2017 notice of disagreement, the Veteran also disagreed with the issues of increased rating and earlier effective date for status post right hip total arthroplasty, increased rating and earlier effective date for instability of the left knee; increased rating and earlier effective date for right knee partial medial meniscectomy; and earlier effective date for special monthly compensation based on housebound criteria. The Board notes that the RO is taking action on these issues and as such, the Board will not address them herein. FINDINGS OF FACT 1. The Veteran's current low back disability did not have its onset in active service or within one year thereafter, and is not otherwise etiologically related to active service or service-connected disabilities. 2. The Veteran's left foot hammer toe second toe status post repair did not have its onset in active service and is not otherwise etiologically related to his active service. 3. The Veteran's left knee and right fifth toe scars were not shown to be manifested by pain or instability. 4. From April 1, 2016, the Veteran's bilateral pes planus has been manifested by accentuated pain on the use and manipulation of the feet, swelling on use, and characteristic callosities, but not marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo Achilles on manipulation. 5. Prior to February 18, 2016, there was no communication received from the Veteran or any representative seeking service connection for right fifth toe scar. 6. The Veteran's service-connected disabilities preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. 7. The Veteran's service-connected disabilities do not present an exceptional or unusual disability picture to render impractical the schedular rating criterias assigned. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for service connection for left foot hammer toe second toe status post repair are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for an initial compensable rating for scars have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.114, DC 7800-7805 (2017). 4. The criteria for a rating in excess of 30 percent, from April 1, 2016, for bilateral pes planus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.114, DC 7346 (2017). 5. The criteria for an effective date earlier than February 18, 2016, for service connection for right fifth toe scar are not met. 38 U.S.C. §§ 5101, 5107, 5110, 7105 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2017). 6. The criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). 7. The criteria for referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for adjudication of an extraschedular rating for the service connected disabilities have not been met. 38 C.F.R. § 3.321(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. Regarding the issue of entitlement to service connection for low back disability, VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in February 2012. With regard to the issues of entitlement to service connection for hammer toe of second toe of left foot status post repair and increased rating for bilateral pes planus, these claims stem from a fully developed claim submitted in February 2016. The Veteran's signature on his February 2016 claim, submitted via a VA Form 21-526EZ, indicates that he received VCAA notice. See 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b). The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). There are also some claims to which VCAA does not apply. With respect to the effective date issue in this case, this appeal arises from the grant of service connection for the right fifth toe scar. Consequently, the original underlying claim was substantiated, and no further notification under the VCAA is required. The same is true as to the initial rating claim. It arises from the same rating decision granting service connection for right fifth toe scar, and thus no further VCAA notice is required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). When aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Low Back Disability Factual Background As noted in the prior November 2015 Board decision, the Veteran's low back disability has been claimed as due to in-service injury, aggravation to congenital curvature of the spine in early childhood, or as secondary to the Veteran's service-connected knee and feet disabilities. A review of the Veteran's STRs shows that the Veteran had complained of lumbar pain in February 1974 due to lifting and was diagnosed with low back pain secondary to strain. A February 1974 STR also noted a radiographic report that the lumbar spine demonstrated mild scoliosis with concavity to the right. A February 1, 1974 STR showed the Veteran had major duty restrictions for no crawling, no stooping, no running, no jumping, no prolonged standing or marching, no strenuous physical activity, and no heavy lifting until February 15, 1974. In the Veteran's separation report of medical examination from his first period of service, the Veteran's spine was noted as normal on clinical evaluation. On May 1980 and May 1981 reports of medical examination, the Veteran's spine was also noted as normal on clinical evaluation. The May 1981 report of medical examination noted the spine's range of motion and skeletal muscle strength was within normal limits. However, the May 1981 report of medical examination further noted the Veteran's history of recurrent back pain from congenital curvature of the spine in early childhood and 1974 back injury while trying to move frozen "Moose Head Coupler." Nevertheless, the examiner noted both the history of recurrent back pain from congenital curvature of the spine in early childhood and 1974 back injury had no complications and no sequelae. A May 1981 report of medical history noted the Veteran's denial that he had or previously had recurrent back pain. The Veteran filed for service connection for lower back pain in April 1982 and was denied service connection for the low back claim in a rating decision the same month. The Veteran did not appeal the decision. In a November 1985 VA treatment record, the Veteran reported lower back pain and indicated that he had these symptoms before in October. He stated he was told his uric acid level was high, denied trauma to his back, and indicated he thought the pain was secondary to his kidney problem. The Veteran later indicated he had a recent back strain with lifting and was diagnosed with musculoskeletal back pain. The provider noted there was very minimal paraspinal tenderness and no vertebral tenderness. An April 1986 VA treatment record noted the Veteran had pulled his back muscle while lifting. A July 1991 treatment record from St. Luke's Regional Medical Center noted the Veteran had crashed on his motorcycle and injured his left side, predominantly the left shoulder, elbow, chest, flank, and hip. The record noted the x-rays were all normal except the elbow. A June 2001 SSA treatment record noted the Veteran had a motor vehicle accident in 1994 with a history of T-12 compression and possible fracture. September 2001 SSA treatment records noted the Veteran's lumbago and that he had been treated by a chiropractor since his neck and back injury in 1991from a motor vehicle accident. September 2001 SSA treatment records also noted the Veteran's reports of pulling all muscles in his back in 1974 when he tried to jerk a hose from a hydrant. He reported he experienced new back pain for three weeks and that he started working in the Norco plant in January 2001 moving heavy tanks, the largest one weighing about 400 to 500 pounds. The provider noted the Veteran had mild T-11 to L-5 area tenderness but that there was no scoliosis or spasm. A June 2002 SSA treatment record noted the Veteran had low back pain and that the present back pain started before January 2002. A January 2003 SSA treatment record noted the Veteran had injured his back during work but that he first injured his back in service. A March 2003 SSA treatment record noted the Veteran's complaint of lower back pain that had its onset over a year ago when he switch from a "dock job" to one that required bending a lot. A January 2005 VA treatment record noted the Veteran had been having back pain for four or five years but it had been getting more severe. A February 2005 SSA treatment record noted a MRI of the lumbar spine showed progressive degenerative disc disease of the lumbar spine. In a November 2005 VA general medication examination, the Veteran indicated that at his job at Norco, prior to his termination, he had to move cylinders around which hurt his left knee and worsened his back problems. He reported he was out one week with a back flair. The examiner noted the Veteran was in a motor vehicle accident in 1995 and a motorbike accident in 1997. The examiner diagnosed osteoarthritis of the lumbar spine. A March 2007 SSA treatment record noted the Veteran's 1991 motor vehicle accident resulted in neck and lower back pain. A March 2011 SSA treatment record noted a MRI of the lumbar spine showed age expected disc disease and arthritis. In a December 2012 VA examination, the Veteran reported that his back had bothered him off and on for years but that he never thought anything of it for a long time. He stated that around 1998, his low back started to really bother him and that an MRI showed bulging disks and he was told to start wearing back brace. He stated that he had worn a back brace ever since when his back hurt, which was the majority of the time. He recalled a lower thoracic spine compression fracture in 1974 when he was wrestling with a gas hose and stated that he was told he pulled all the muscles in his back. He indicated that he was drinking so much alcohol at the time that he did not really notice how much pain his back gave him at the time. The examiner noted the Veteran was t-boned in 1994 and eventually had a lot of chiropractic care for his C1, C2 fusion fracture. The examiner noted that it sounded, per the Veteran, that the motor vehicle accident resulted in a lower thoracic compression fracture. The Veteran also reported that in 2010 or 2011, he slid off his a motorcycle at nearly 30 miles per hour and was knocked out cold. He stated that he was admitted to the hospital for two days due to vertigo. He recalled hitting the washboard on a motorcycle and hit his right elbow, shoulder, chest, and hip and had an open elbow lesion. The examiner noted that an x-ray done during active service noted mild scoliosis. The examiner noted this was a common finding that can be congenital, related to transient muscle tightness or spasm from muscle strain or injury, or merely positional and not reproduced on any other imaging, even those done on the same day. The examiner noted that congenital scoliosis typically worsens over time regardless of activities, presence or absence of intercurrent injuries, or military service. The examiner noted that lumbar spine x-rays done at the Boise VA medical center since 2002 failed to show scoliosis and as such, the examiner found that the congenital scoliosis was less likely as not present during the STRs or currently. Regarding direct service connection, the examiner noted the Veteran denied recurrent back pain in 1980 and 1981 but that the 1981 provider included a note of recurrent back pain attributed to a congenital spinal condition. The examiner highlighted, however, that these episodes apparently did not require any medical evaluation or treatment in service. The examiner additionally highlighted that the Veteran proceeded to engage in both physical labor for many years as well as frequent dancing similar to Irish River dancing for entertainment, neither of which was suggestive of significant ongoing back issues. The examiner further noted the Veteran's involvement in two or more automobile/motorcycle accidents. The examiner also noted the Veteran's treatment records since 1996 showed that the majority of the past 17 years that he was moderately to very obese. After examination and a detailed review of the Veteran's treatment history, the examiner opined that it was less likely than not that the Veteran's current widespread lumbar spine degenerative joint disease was related to single self-limited back injury in 1971 or single note of recurrent back pains recorded on separation in 1981 and was most likely related to obesity, intercurrent injury, and aging. In a January 2016 VA addendum opinion, the examiner noted that the prior opinion in December 2012 regarding direct service connection of the back disability to a back injury nexus in service stood. The examiner explained that pulled muscles, that the Veteran experienced during active service, were typically a self-limited muscle condition without residuals and the examiner noted that as outlined previously in the December 2012 VA examination, the Veteran engaged in very physical occupation and recreational activities that was not consistent with ongoing or chronic back condition. The examiner found that the degenerative joint disease of the spine less likely as not had its onset during, or was otherwise related to, the Veteran's military service, including consideration of the Veteran's assertions that he pulled all the muscles in his back in service while trying to jerk a hose from a hydrant. The examiner also noted that a review of the VA records showed degenerative arthritis of multiple sites which could not plausibly related to the Veteran's service connected knee or foot condition, including neck, shoulder, hand, and spine. The examiner noted this was indicative of physical wear and tear due to use, genetic predisposition to degeneration, and traumas. The examiner noted the Veteran had BMIs indicative of various degrees of obesity for much or a majority of the time since separation from active service which predisposed spine degenerative joint disease. The examiner further noted the spine imaging demonstrated generally symmetric degenerative changes not suggestive of a gait or chronic weight-bearing change (as from a knee or foot disability) as etiological or contributory. As such, the examiner opined that it was less likely than not that the identified back disability was caused by or aggravated by any of the Veteran's service-connected disabilities. Analysis The Board notes that the only adequate medical opinions of record, the December 2012 VA examination and January 2016 VA addendum opinion, conducted by the same VA examiner, weigh against the claim for service connection for a low back disability as due to military service or as due to his service-connected disabilities. The examiner also had disputed the in-service diagnosis of mild scoliosis from early childhood, noting that scoliosis is an ongoing disease that worsens with time but that there was no current diagnosis of scoliosis and no mention of scoliosis was found on entrance into the first period of active service. All contentions raised by the record has been adequately considered by the VA examiner and the Board finds that the December 2012 examiner's opinion and subsequent January 2016 opinion most probative, as they were based upon a thorough, accurate review of the record, to include contentions from the Veteran and is supported by a detailed and sufficient rationale. While the Veteran was competent to report things that came to him through his senses, such as pain, he was not competent to provide an etiology opinion. He has not indicated specialized medical training and the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his low back disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges the Veteran's intermittent ongoing complaints of low back pain since separation from active service; however, there have been numerous treatment records that have noted the Veteran's reports of onset of low back pain starting after active service. The Board also highlights numerous intercurrent physical traumas the Veteran has experienced from motor vehicle/motorcycle accidents in addition to his post-service physically laborious occupation and personal physical activities that further weigh against the Veteran's contention that his current low back disability is related to active service. The Board ultimately finds the VA examiner's nexus opinions regarding the Veteran's low back disability on a direct and secondary basis more persuasive because of the many years of training and expertise of the examiner. Moreover, the Veteran did not submit any contrary competent evidence linking his low back disability to service or service connected disabilities, aside from his own assertions, a fact considered by the VA examiner. The Board reiterates that there is no competent evidence linking the Veteran's low back disability to service or service-connected disabilities. Accordingly, the Board concludes that the probative evidence of record does not support the claim of entitlement to service connection for low back disability on a direct and secondary basis. The Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Hammer Toe of Second Toe of Left Foot Status Post Repair Factual Background A review of the STRs do not show any complaints related specifically to hammer toes or related to the second toe of the left foot. An October 1998 treatment record from Gibbs Clinic noted the Veteran's toes looked fine. An August 1999 VA treatment record noted the Veteran's persistent pain with hammertoe deformities. The record noted an assessment of hammertoe deformities and a history of peripheral neuropathy disorder. VA treatment records from 2001 to 2017 noted the Veteran's past medical history included hammer toes. A November 2005 VA examination noted the Veteran had a history of a hammertoe but indicated the Veteran's reports that he could not feel it anymore because of the neuropathy that caused numbness. In a January 2016 private treatment record from the Foot and Ankle Medical Center, the Veteran reported his hammertoe was starting to wear through all his socks and that he believed it caused his other toes on his left foot to separate. The Veteran admitted a previous traumatic injury in 1978 that happened to his left big toe and second toe. He reported dropping a transmission on them. The Veteran also reported having neuropathy in his legs, feet, and arms. The provider noted x-rays showed contracted left second MPJ and noted assessments of left and right foot hammer toes and pain in left and right toes and reviewed a corrective procedure with the Veteran for the hammertoe left second toe with arthrodesis of the PIPJ. A January 2016 private treatment record from the Millennium Surgery Center noted pre-operative orders of correction for hammertoe of the second toe in the left foot. A May 2016 VA examination noted a diagnosis of hammer toes on the left side with a date of diagnosis of approximately 2012. During examination, the Veteran reported that his left second toe was fused due to a traumatic crush of his toe with a 13 speed fuller transmission when he worked as a mechanic in 1978. The examiner noted the Veteran had surgery to repair the second toe on his left foot in February 2016 in which the knuckle that made the toe unable to bend was removed. A July 2016 VA treatment record noted the hammer toe that was repaired was working well. A December 2016 VA treatment record noted the missing tip of the second toe in the Veteran's left foot, amputation of the hammertoe. Analysis The Board notes that the only adequate opinion of record weighs against the claim. Specifically, the May 2016 VA examiner indicated onset of the Veteran's left toe stemmed from an injury that occurred outside of the Veteran's two periods of active service in 1978 when the Veteran worked as a civilian mechanic. The evidence of record also fails to show that the Veteran's current left second toe disability is related to active service. The Veteran has admitted to such an injury and the Veteran has failed to provide contrary evidence that has linked the Veteran's left second toe disability to active service. Considering the Veteran has admitted to a post-service injury to the second toe, he also, as a result has not stated specifically that his second left toe disability is the result of his active service. Even if the Board were to construe the Veteran's claim as an indication that his second left toe disability is related to service, as a lay person without the appropriate medical training and expertise, the Veteran is not competent to make such an etiological conclusion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007 In sum, the Board finds that there is no basis to establish service connection for left foot hammer toe second toe status post repair. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection on a direct basis. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. Earlier Effective Date Right Fifth Toe Scar Generally, the effective date of an award of disability compensation, i.e., service connection, is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim for service connection is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). In this context, it should be noted that the provisions of 38 U.S.C. § 5110 refer to the date an "application" is received; and "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). The regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified, but need not be specific. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). While VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Moreover, the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377 (1999); see also MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006). Here, the Veteran seeks an effective date prior to February 18, 2016, for the grant of service connection for surgical scar to the right fifth toe status post tendon release. The Veteran's claim of entitlement to service connection for the right fifth toe tendon release was received by VA on February 18, 2016. The evidence of record does not indicate an intent to file a service connection claim for the right fifth toe tendon release prior to February 18, 2016, when VA first received this claim. It is undisputed that the Veteran's service connection claim for right fifth toe tendon release was not filed within 1 year of his discharge from his first or second period active service. A rating decision in August 2016 granted service connection for the right fifth toe tendon release, effective February 18, 2016. The rating for the right fifth toe was combined with the evaluation for pes planus. The August 2016 rating decision also granted service connection for surgical scar, for the right fifth toe, effective February 18, 2016, as a residual of the surgical repair of the Veteran's service-connected right fifth toe tendon release. As the effective date for the Veteran's scar was assigned as the same date as service connection for the Veteran's right fifth toe tendon release, whose surgery caused the scar, the Veteran is in receipt of the earliest effective date available for the grant of service connection for surgical scar and the appeal is denied. The Board notes that the RO should consider separate ratings the right fifth toe disabilities for the purposes of clarity. Higher Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When the veteran has disagreed with the initial rating assigned, evaluation of the medical evidence since the effective date of service connection and consideration of the appropriateness of "staged" ratings (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119 (1999). When the veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. Powell v. West, 13 Vet. App. 31 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. A. Bilateral Pes Planus Under Diagnostic Code 5276, bilateral or unilateral moderate flatfoot with weight-bearing line over or medial to great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet warrants a 10 percent rating. 38 CFR § 4.71a, Diagnostic Code 5276. Severe flatfoot, with objective evidence of marked deformity, such as pronation, abduction, or other deformity; pain on manipulation and use accentuated, indication of swelling on use, with characteristic callosities, is rated 20 percent for unilateral disability, and 30 percent for bilateral disability. 38 CFR § 4.71a, Diagnostic Code 5276. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent for unilateral disability, and is rated 50 percent for bilateral disability. 38 CFR § 4.71a, Diagnostic Code 5276. The Board notes preliminarily that to the extent the RO has styled the Veteran's increased rating claim for his bilateral pes planus to include an earlier effective date claim, the Board finds there has been a mischaracterization of the issues. Instead, the Board finds that claim is actually only an increased rating for the service-connected bilateral pes planus stemming from the February 18, 2016 claim for temporary 100 percent for left foot surgery and right fifth toe tendon release. Nevertheless, the Board notes that any increased rating claim for bilateral pes planus for the period prior November 25, 2015, the date of the finalized Board decision, is not applicable. In general, Board decisions are final as of the date of issuance and mailing. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. A final Board decision can be challenged in four ways. First, the Court can review a Board decision where the appellant files a Notice of Appeal (NOA) to the Court within 120 days of notice of the Board decision. Second, the Board can reconsider a Board decision where the appellant files a motion for reconsideration of the decision. Third, the Board can vacate a Board decision where the appellant files a motion to vacate the decision. Fourth, a motion can be filed for revision of a Board decision based on clear and unmistakable error (CUE) in the decision. 38 U.S.C. § 7266; 38 C.F.R. § 20.1403; Rosler v. Derwinski, 1 Vet. App. 241, 245-46 (1991); Harris v. Nicholson, 19 Vet. App. 345, 348 (2005). Motions for review of prior Board decisions on the grounds of CUE are adjudicated pursuant to the Board's Rules of Practice codified at 38 C.F.R. §§ 20.1400-1411. A motion alleging CUE in a prior Board decision must set forth clearly and specifically the alleged CUE, or errors of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been different but for the alleged error. 38 C.F.R. § 20.1404(b). Here, the Veteran did not appeal the November 2015 Board decision that continued the Veteran's 10 percent evaluation for his service-connected bilateral pes planus, did not file a motion to reconsider, vacate, or based on CUE. As such, the November 2015 Board decision is final and any increased rating claim from the date of the November 25, 2015 Board decision or earlier is not appropriate. Nevertheless, as noted above, the Board will only consider whether a higher rating is warranted from February 18, 2016. Since the Veteran has been assigned a 100 percent rating, the highest rating assignable, from February 18, 2016 to March 31, 2016, the Board will only address the period from April 1, 2016, in which the Veteran was assigned a 30 percent rating for his service-connected bilateral pes planus. The Veteran was provided a VA examination in May 2016. During the examination, the Veteran reported that he was unable to walk more than four blocks before he had to sit down and that he was only able to stand at most for two hours with alternating between standing and sitting. He reported that wearing shoes and inserts improved the pain but that he was unable to go barefoot. On examination, in both feet, the Veteran had pain on use, accentuated on use, pain on manipulation of the feet, accentuated on manipulation, swelling on use, and characteristic callouses. The examiner noted the Veteran did not have extreme tenderness of plantar surfaces in either foot and did not have decreased longitudinal arch height in either foot on weight bearing. There was objective evidence of marked deformity and marked pronation in both feet. However, the examiner noted the marked pronation was improved by orthopedic shoes or appliances. The examiner noted that the weight-bearing line did not fall over or medial the great toe in either feet and that there was no other lower extremity deformity other than pes planus that caused alteration of the weight-bearing line. The Veteran did not have inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation of either foot. The Veteran did not have Morton's neuroma but had metatarsalgia in both feet. The Veteran reported sensation issues, pain with walking and rest, and lacking endurance with limit to his overall motion specifically related to his feet. The evidence of record demonstrates that a rating in excess of 30 percent is not warranted for pes planus. The evidence shows that the Veteran's bilateral foot disability is manifested by objective evidence of tenderness and pain on manipulation and use accentuated, indication of swelling and characteristic callosities, as well as subjective complaints chronic pain - i.e., symptoms that approximate "severe" pes planus under DC 5276. A 50 percent rating or greater is not warranted under DC 5276, because the evidence does not reflect that the Veteran's disability due to bilateral pes planus reaches the level of severity to be considered a "pronounced" disability under DC 5276. See 38 C.F.R. § 4.71a. As noted, the May 2016 VA examiner indicated that the Veteran did not have extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation. The Veteran also indicated his feet disability did improve with orthopedic shoes or appliances. The Veteran's pes planus has never been described as "pronounced" and there are no additional signs or symptoms that correspond to the requirements for a 50 percent rating under DC 5276. VA treatment records during this period also failed to show extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation. In short, a rating greater than 30 percent for bilateral pes planus is not warranted under DC 5276 for this period on appeal. B. Scars The Board preliminarily notes that the November 25, 2015 Board decision also had addressed the issue of an increased rating for the left knee scar and continued the noncompensable rating for the service-connected disability. As noted above, the Veteran did not appeal the November 2015 Board decision and did not file a motion to reconsider, vacate, or based on CUE. As such, the November 2015 Board decision is final and any increased rating claim from the date of the November 25, 2015 Board decision or earlier is not appropriate. The Board also notes that the current increased rating claim for the scars also stems from the February 18, 2016 claim and as such, only the period from February 18, 2016 will be addressed. The Veteran's scars are rated non-compensable. The rating criteria for evaluating scars are set forth at 38 C.F.R. § 4.118, DCs 7800-7805. DC 7805 provides that scars (including linear scars) not otherwise rated under DCs 7800-7804 are to be rated based on any disabling effects not provided for by those codes. In addition, the effects of scars otherwise rated under DCs 7800-7804 are to be considered. 38 C.F.R. § 4.118, DC 7805. Under DC 7804, one or two scars that are unstable or painful warrants a 10 percent rating, three or four scars that are unstable or painful warrants a 20 percent rating, and five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Note (1). If one or more scars are both unstable and painful, an additional 10 percent is added to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7800, Note (2). The Board finds that the preponderance of the evidence is against granting the Veteran's claim for a compensable rating for his service-connected scars. The Veteran has not indicated his scars are unstable or painful. Treatment records failed to note the Veteran's service connected left knee and right fifth toe scars were unstable or painful. In the May 2016 VA examination, the VA examiner noted the Veteran's service connected right fifth toe scar was stable and not painful. The Veteran also has not identified or submitted any evidence demonstrating his entitlement to an initial compensable rating for his service-connected scars. Accordingly, the Board finds that the criteria for a compensable rating for the left knee and right fifth toe scars have not been met. TDIU When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As noted in the November 2015 Board decision, the Veteran submitted a claim for a TDIU in November 2011 and never withdrew the claim. The Board found this was consistent with the idea that TDIU is a component of the appeal for higher ratings. The Board then remanded the TDIU issue for further development. The record reflects that the Veteran has been unemployed since 2005. The Veteran contends that he is totally disabled by reason of his service-connected disabilities. TDIU is warranted when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology and disabilities affecting a single body system, such as orthopedic system, are considered to be one disability. Id. From November 2011, the Veteran has been in receipt of a 30 percent rating for a left knee disorder; a 30 percent rating for a right hip disorder; a 10 percent rating to February 17, 2016, a 100 percent rating from February 18, 2016 to March 31, 2016, and 30 percent from April 1, 2016 for bilateral pes planus; a 10 percent rating for right knee disorder; a 10 percent rating for left knee instability; a 10 percent rating for right knee partial medial meniscectomy; and a 0 percent rating for scars; with the combined total schedular rating as 80 percent from November 17, 2011 to February 17, 2016, 100 percent from February 18, 2016, and 80 percent from April 1, 2016. Taking into consideration the bilateral factor and the single body system, the pertinent schedular criteria based on rating percentages have been met from November 17, 2011. 38 C.F.R. § 4.16(a). At the time of a November 2005 VA examination, the Veteran was employed by PDQ Delivery "running parts." Prior to PDQ Delivery, the Veteran worked in temporary employment with Motive power where he bent cables for high voltage compartments. He was fired in March 2005 from his job at Norco where he had been employed for 3.5 years. The examiner noted that in the beginning with Norco, the Veteran was a cylinder inspector, where he had to move cylinders around, which caused his left knee to hurt more, as well as worsening his back problems. He was later moved to a settling plant, where he refilled bottles and tested for leaks. The Veteran stated if he had not been fired, he would have quit anyway because he could not do the job. He indicated the pain in his arthritis and neuropathy caused him to hurt all over by the end of the day and he was taking lots of pain medication, usually three to five times daily. After examination, the examiner found that the Veteran's bilateral feet peripheral neuropathy, bilateral carpel tunnels syndrome, and osteoarthritis of many joints, including knees, hips, spine, feet, and more likely than not, hands, effected the Veteran's usual occupational and daily activities the most. An April 2010 SSA record noted the Veteran's employment history included working as a tank cylinder inspector, temporary heavy laborer, plumbing supplier, aircraft service technician, trailer production laborer, landscaper, convenience store stocker and clerk, and computer operator. A March 2011 SSA record noted the Veteran educational history included vocational school for drafting and design, office equipment technology, and diesel mechanics. In a December 2012 VA examination, the examiner found that the Veteran's service-connected right and left knee disabilities and bilateral pes planus did not impact his ability to work. No rationale was provided for the findings. In a May 2016 VA examination, the examiner found that the Veteran's service-connected feet disabilities impacted his ability to perform any type of occupational task. Specifically, the examiner noted the Veteran's need to alternate between sitting and standing for a maximum tolerance of two hours and that the Veteran could not walk further than four blocks with orthotic inserts in place. The examiner also noted the Veteran had noted worked since 2005 when he was a cylinder inspector for Norco. The Veteran submitted two private opinions in February 2017 in support of his TDIU claim. The first opinion was conducted by Dr. K. who opined that it was as likely as not that the combination of pain and limitations caused by the Veteran's service-connected disabilities prevent him from being able to work full time. The provider indicated a detailed review of the Veteran's claims file and included a substantive rationale for the opinion. The provider found that based on the clinical findings and the history of the Veteran's service-connected impairments and VA examinations, it was the provider's medical opinion that the complaints and symptoms described by the Veteran were consistent with his diagnoses. The examiner explained that the limitations such as limited standing, sitting, lifting, walking, decreased concentration, pain, and the need for several breaks daily to lie down caused by the combination of service-connected impairments precluded the Veteran from obtaining and/or maintaining gainful employment. The second opinion was conducted by Dr. S.B., a vocational specialist. The provider also noted a detail review of the Veteran's claims file. The provider found that the Veteran had a combination of physical conditions which interact in terms of severity level and the major area of limitations appeared to be physical activity involved in sustaining work, which was extremely limiting for the Veteran. The provider noted the Veteran's knee impairments would restrict him to sedentary work at best. However, the provider also noted that the Veteran was not capable of sustaining sedentary work due to the impact of pain on his concentration and tolerance for even sedentary work tasks. The provider opined that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected disabilities. Thus, given the negative VA examination reports, the Board notes that there are conflicting medical opinions of record. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. In this case, the Board finds the February 2017 independent vocational assessment opinion and February 2017 private medical evaluation report the most probative evidence of record. Both opinions determined that the Veteran was unemployable due a combination of his service-connected disabilities, and further opined that his service-connected physical disabilities, standing alone, precluded both physical and sedentary employment. Importantly, both assessments are the only evidence of record to consider the combined effect of all the Veteran's service-connected disabilities that also provided sufficient rationale. While the December 2012 VA examiner found that the Veteran's left and right knee disabilities and bilateral pes planus did not preclude gainful employment, no VA examination was obtained that considered the combined effects of all disabilities, nor did the examiner provide a sufficient rationale in support of the finding. Thus, the Board finds that the February 2017 independent vocational assessment and February 2017 medical evaluation report are entitled to substantial probative weight. In any event, the evidence is at least in relative equipoise with regard to whether the Veteran's service-connected disabilities preclude substantially gainful employment. In light of the above evidence and the vocational opinions of record, the weight of the evidence is in favor of a conclusion that the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment consistent with his education and occupational experience. Entitlement to a TDIU is, therefore, granted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a). Extraschedular Rating While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the symptoms of the Veteran's service-connected disabilities related to his right and left knee, right hip, scars, and bilateral pes planus are fully contemplated by the applicable rating criteria. The evidence of record does not show the symptoms related to his service-connected disabilities are not encompassed by the schedular ratings assigned. Therefore, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). (Continued on the next page) ORDER Entitlement to service connection for low back disability is denied. Entitlement to service connection for left foot hammer toe second toe status post repair is denied. Entitlement to an initial compensable rating for left knee and right fifth toe scars, from February 18, 2016, is denied. Entitlement to rating in excess of 30 percent, from April 1, 2016, for bilateral pes planus, is denied. Entitlement to an effective date earlier than February 18, 2016, for the grant of service connection for right fifth toe scar is denied. Entitlement to a TDIU is granted. Referral for extraschedular consideration is denied. ______________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs