Citation Nr: 1817257	
Decision Date: 03/19/18    Archive Date: 03/30/18

DOCKET NO.  09-37 369	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to an initial rating in excess of 20 percent for residuals of Fournier gangrene.

2. Entitlement to an initial rating in excess of 10 percent for status post second metatarsal bone stress fracture of the right foot as of April 25, 2012.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Jonathan M. Estes, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1969 to September 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2008 (right foot) and August 2009 (Fournier gangrene) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

In November 2009, the Veteran withdrew his request for a Board hearing before a Veterans Law Judge.  38 C.F.R. § 20.704(e) (2017).

In April 2012 and February 2014, the Board remanded the case for additional development, and, in January 2015, the Board, in pertinent part, denied the Veteran's claim for service connection for left knee, left ankle, and left foot disabilities; granted an initial 10 percent rating, but no higher, for residuals of Fournier gangrene to the perineum, based on instability; granted a separate initial 10 percent rating, but no higher, for residuals of Fournier gangrene to the perineum, based on pain on examination; and granted an initial 10 percent rating, but no higher, for the Veteran's right foot disability as of April 25, 2012. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court).  In September 2016, the Court issued a Memorandum Decision, which set aside and remanded the Board's January 2015 decision as to the denial of service connection for left knee, left ankle, and left foot disorders, and higher initial ratings for residuals of Fournier gangrene and the Veteran's right foot disability as of April 25, 2012. Consequently, in April 2017, the Board remanded the case to address the concerns noted in the Memorandum Decision. The case now returns to the Board for further appellate review.

In a December 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left knee, left ankle, and left foot disabilities. As this comprises a full grant of benefits sought, such issues are no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997).

The issue of entitlement to a higher initial rating for a right foot disability as of April 25, 2012, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

For the entire appeal period, the Veteran's service-connected residuals of Fournier gangrene is painful and unstable, but does not affect more than 5 percent of his entire body or exposed areas, or require systemic therapy, and does not result in disfigurement of the head, face, or neck, scarring of a size so as to warrant a separate compensable rating, or any additional functional impairment.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 20 percent for residuals of Fournier gangrene have not been met. 38 U.S.C. §§ 1155, 5107 (2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes (DC) 7801-7806 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Preliminary Matters

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

While the Veteran's representative alleged that the August 2017 examination did not comply with previous remand directives, which will be discussed herein, neither the Veteran nor his representative has alleged any other deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Analysis

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.  All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

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).  Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  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.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  See id. at 126.

In the instant case, the Veteran is in receipt of a noncompensable rating for Fournier's gangrene of the scrotum, effective January 1, 2008, pursuant to DC 7820, and a 20 percent rating for Fournier's gangrene of the perineum, effective January 31, 2008, pursuant to DC 7804.

Pursuant to DC 7820, service-connected skin infections not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases) are rated depending on the predominant disability as disfigurement of the head, face, or neck under DC 7800; as scars under DCs 7801-7805; or by analogy to dermatitis under DC 7806. 38 C.F.R. § 4.118, DC 7820 (2007).

As an initial matter, the Board notes that the rating criteria for evaluating skin disfigurement and scars under 38 C.F.R. § 4.118, DCs 7800-7805 were amended during the pendency of this appeal (effective October 23, 2008). However, the revised criteria apply only to applications for benefits received by VA on or after the effective date of October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008).

A veteran who is rated under DCs 7800 to 7805 before October 23, 2008, may request review under the amended DCs, irrespective of whether the veteran's disability has increased since the last review. In such cases, VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under DCs 7800, 7801, 7802, 7804, and 7805, but in no case will the revised award be effective before October 23, 2008. In the instant case, the Veteran's claim for service connection was received in January 2008, which precedes the effective date of the revised criteria, and he has not requested an evaluation under the revised rating criteria.  Therefore, the amended criteria are not applicable to the instant case and will not be further addressed or considered.

As noted previously, the Veteran is currently in receipt of a noncompensable rating for Fournier's gangrene of the scrotum, and a 20 percent rating for Fournier's gangrene of the perineum.  With regard to the latter evaluation, the January 2015 Board decision awarded a 10 percent rating for instability of the lesion pursuant to DC 7803 and a 10 percent rating for pain on examination of the lesion pursuant to DC 7804; however, in the implementation of the award, the February 2015 rating decision combined the ratings to 20 percent under DC 7804, but explicitly determined that such rating contemplates one painful and unstable scar of the anterior trunk.

As an initial matter, the Board notes that the Veteran's residuals of Fournier's gangrene does not affect his head, face, or neck, thus DC 7800 is inapplicable. However, under pre-amended criteria, 10 percent evaluations were assigned for scars (other than head, face, or neck) that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) (DC 7801); for scars (other than head, face, or neck) that are superficial and that do not cause limited motion in an area or areas of 144 square inches (929 sq. cm.) or greater (DC 7802); for superficial unstable scars (DC 7803); and for superficial scars which are painful on examination (DC 7804). Additionally, a scar may also be rated based on limitation of function of the part affected (DC 7805). 38 C.F.R. § 4.118.

Throughout the appeal, the Veteran has consistently reported his Fournier gangrene residuals were painful and they have also been found to be painful on examination. The Veteran started treatment in August 2007 complaining of pain in the perineal region, and was found to have an infection of the scrotum, which relapsed in January 2008. At the October 2008 VA examination, he reported minimal discomfort in the scrotum, especially in the posterior aspect.  Additionally, at an April 2012 VA examination, the Veteran reported frequent irritation in the area affected by the Fournier gangrene. Further, at the May 2014 and August 2017 VA examinations, functional impacts of the Fournier gangrene were noted as pain and irritation. Consequently, in light of the fact that the Veteran's residuals of Fournier gangrene are painful on examination, a 10 percent rating pursuant to DC 7804 has been awarded.  However, no higher ratings are available under such DC.

The Veteran has also reported that the skin is frequently irritated and breaks down in the area affected. Under DC 7803, Note 1, a scar is considered "unstable" where, for any reason, there is frequent loss of covering of the skin. 38 C.F.R. § 4.118. At the April 2012 VA examination, the Veteran competently and credibly reported that, on average, about three to four times a year the skin will break down with a discharge in the area. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Veteran has undergone numerous surgeries beginning in August 2007 to remove necrotic tissue and debride the area of the tissue, requiring frequent monitoring and treatment thereafter. Finally, in a December 2008 letter, the Veteran treating physician at the time stated he had an open wound from the surgery in August 2007 that had never closed.  The Veteran's reports of the skin breaking down, along with the frequent medical treatments removing skin, and reports of the open wound in the area all show the skin and Fournier gangrene residuals are unstable. Therefore, a 10 percent rating has also been assigned for as analogous to an unstable scar under DC 7803.  However, no higher ratings are available under such DC.

The Board further finds that the evidence of record does not support any higher or separate ratings under any applicable DC. In this regard, the 10 percent ratings above are the highest allowable ratings based on instability and pain under DCs 7803 and 7804, respectively, and the Veteran's disability does not meet the criteria for a higher or separate rating under DCs 7801, 7802, 7805, or 7806. 

In order to be compensably rated under both DCs 7801 and 7802, a scar must measure a minimum size. The Veteran's Fournier gangrene residuals have never been measured during a VA examination and, at the most recent August 2017 examination, the Veteran refused an examination of the affected area. The Veteran's medical records, however, do contain a few measurements of the affected area. In August 2007, tissue fragment collected for sampling from a surgery were noted to be 7.7 centimeters by 1.3 centimeters by 5 centimeters, at the largest. In January 2008, a small fissure measuring 8 millimeters long by 2 millimeters wide was noted. In March 2008, a cyst or cluster of cysts was noted in the region measuring 8 millimeters by 6 millimeters by 4 millimeters. Finally, later in March 2008, the Veteran was noted to have a very swollen and exquisitely tender region in the perineum, which contained a complex mass measuring approximately 8 centimeters by 4 centimeters. In all, the largest of these measured residuals in the affected area is the skin sampling taken in August 2007, which is not a measurement of the actual wound, but nevertheless does not meet the minimum size required by DCs 7801 and 7802. Therefore, higher or separate ratings under those DCs are not warranted.

Nor is a rating under DC 7805 warranted because there is no evidence of record that shows any limitation in function of the perineum or scrotum. The Veteran is separately service-connected for erectile dysfunction as related to the Fournier gangrene. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Additionally, the functional limitation caused by the instability and pain is also already considered by the 10 percent ratings assigned pursuant to DCs 7803 and 7804.

Finally, the Board considered whether a higher or separate rating by analogy to dermatitis under DC 7806 is warranted.  In this regard, under such DC, a noncompensable rating is warranted if dermatitis or eczema affects less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and; no more than topical therapy required during the past 12-month period.  A 10 percent rating is warranted if dermatitis or eczema affects at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of the exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  A 30 percent rating is warranted if the dermatitis or eczema affects 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60 percent rating is warranted if the dermatitis or eczema affects more than 40 percent of the entire body, or more than 40 percent of exposed areas, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.  38 C.F.R. § 4.118.

In this regard, while the Veteran declined an examination of his residuals of Fournier gangrene at the August 2017 VA examination, the April 2012 VA examiner noted that the Veteran did not have any visible skin conditions, and the May 2014 VA examiner noted that the affected area is less than 5 percent of the Veteran's entire body.  

Pertinent to the treatment for the Veteran's residuals of Fournier gangrene, the April 2012 VA examiner noted that such was treated with "other topical medication," specifically dressings after cleaning with hydrogen peroxide.  At the May 2014 VA examination, the examiner indicated that the Veteran used over-the-counter topical medications for the Fournier gangrene, which were used for 6 weeks or more but not on a constant basis. However, the examiner did not indicate kind and type of medication the Veteran used, to include whether it was "like or similar to corticosteroids or other immunosuppressive drugs." Warren v. McDonald, 28 Vet.App. 194, 197 (2016). 

As such, on remand, the August 2017 examiner was asked to comment on the type and usage of topical, or other, medication, and whether it was like or similar to corticosteroids or other immunosuppressive drugs. The examiner noted that, per a letter from A-W.M., M.D., the Veteran used topical corticosteroids on a constant or near constant basis; specifically he used over-the-counter Cortisone-10 as well as prescription Nystatin ointment and powders.

However, the Board finds that such use of topical corticosteroids does not warrant a rating under DC 7806 as the use was not systemic. In this regard, the Board acknowledges the Veteran's frequent use of topical treatment during the entire period on appeal - including a topical corticosteroid per the August 2017 examination - and that the use of systemic treatment can warrant higher ratings under Diagnostic Code 7806 regardless of the total body area affected by his Fournier gangrene. However, the Federal Circuit has found that Diagnostic Code 7806 draws a clear distinction between "systemic therapy" and "topical therapy" as the operative terms of the diagnostic code. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017) (reversing Johnson v. McDonald, 27 Vet.App.497, 504 (2016)). The Federal Circuit explained that systemic therapy means "treatment pertaining to or affecting the body as a whole," whereas topical therapy means "treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Id. at 1355. While the Veteran very well may have applied a topical corticosteroid to his Fournier gangrene residuals for durations that would warrant a higher or separate rating under DC 7806, the evidence is against a finding that that he was treating his body as a whole. Rather, the Veteran used topical medication to treat only the perineal and scrotal area affected by his Fournier gangrene, which the evidence shows has affected less than 5 percent of his entire body. Thus, at no time during the period on appeal, has the Veteran's topical treatment for Fournier gangrene constituted "systemic therapy" for the purposes of DC 7806.

The Board acknowledges the Veteran's representative's contentions that the August 2017 examination did not clarify the type of medications used by the Veteran. However, the record shows that the examiner did in fact clarify the medication used, as detailed above. Further, the Board finds substantial compliance has been followed in the remand instructions as the clarification of the medications the Veteran used directly addresses the types of medications that had been indicated in the May 2014 examination. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required).

Therefore, for the entire appeal period, the Board finds that the Veteran's service-connected residuals of Fournier gangrene is painful and unstable, but does not affect more than 5 percent of his entire body or exposed areas, or require systemic therapy, and does not result in disfigurement of the head, face, or neck, scarring of a size so as to warrant a separate compensable rating, or any additional functional impairment.  Consequently, an initial rating in excess of 20 percent for such disability is not warranted.

The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected residuals of Fournier gangrene; however, the Board finds that his symptomatology has been stable during the period on appeal. Therefore, assigning staged ratings for such disability is not warranted.

Neither the Veteran nor his representatives have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.  


ORDER

An initial rating in excess of 20 percent for residuals of Fournier gangrene is denied.


REMAND

Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  

In the instant case, in April 2017, the Board remanded the claim for an initial rating in excess of 10 percent for the Veteran's right foot disability as of April 25, 2012, in order to afford him a VA examination addressing the nature and severity of such condition. As relevant, the examiner was requested to distinguish between the symptoms and resulting functional impairment associated with the service-connected disability from those associated any nonservice-connected disabilities. Thereafter, the Veteran underwent a VA examination in August 2017.  As relevant to the Veteran's right foot, the examiner diagnosed pes planus, metatarsalgia, plantar fasciitis, degenerative arthritis, and gout in addition to status post second metatarsal bone stress fracture of the right foot.  Following a complete examination in which all testing as requested by the Board was completed, the examiner found that plantar fasciitis, metatarsalgia, arthritis, and pes planus are related to the service-connected fracture.  She noted that, due to the fracture, the foot lost foot support resulting in tendon instability, resulting in loss or arch support the true definition of flat foot.  The history of injury and fracture has led to pain in the Veteran's foot, as evidenced by metatarsalgia and plantar fasciitis.  However, as relevant to arthritis and gout, the examiner stated that old fractures treated properly and those treated improperly have a higher probability of resulting in degenerative bone disease, better known as arthritis.  For gout, any arthritic pain is due to chronic inflammation which can be continuous due to old as well as new injuries, and thus related.  In this regard, while the examiner clearly related the Veteran's pes planus, plantar fasciitis, and metatarsalgia to his service-connected fracture of his right foot, she only discussed the etiology of arthritis and gout in general medical terms.

Therefore, the Board finds that a remand is necessary in order to obtain an addendum opinion that specifically addresses whether the Veteran's degenerative arthritis and gout of the right foot are related to his service-connected status post second metatarsal bone stress fracture of the right foot.  If they are not related to such disability, the examiner should be requested to distinguish between the symptoms and resulting functional impairment caused by the Veteran's service-connected right foot disability from any caused by nonservice-connected disabilities, or, explain why he or she is unable to do so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  

Furthermore, as the August 2017 VA examiner explicitly related the Veteran's right foot pes planus, plantar fasciitis, and metatarsalgia to his service-connected for status post second metatarsal bone stress fracture of the right foot, in the readjudication of the Veteran's claim, the AOJ should consider whether any higher or separate ratings are warranted in light of the symptoms associated with such diagnoses.

Accordingly, the case is REMANDED for the following action:

1. Return the record to the VA examiner who conducted the August 2017 VA examination referable to the Veteran's right foot disability. The record and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the record and the Remand have been reviewed. If the August 2017 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.

Following a review of the record, the examiner should address the following inquiries:

(A)  Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right foot degenerative arthritis and/or gout are related to, i.e., a symptom of, or caused or aggravated by, his service-connected status post second metatarsal bone stress fracture of the right foot?

(B)  For any right foot disability found to be unrelated to the Veteran's status post second metatarsal bone stress fracture of the right foot, the examiner should distinguish between the symptoms and resulting functional impairment associated with the service-connected status post second metatarsal bone stress fracture (to include any related disorders of the right foot, to include pes planus, plantar fasciitis, and metatarsalgia) from those associated with any nonservice-connected disabilities involving the right foot.  If the VA examiner is unable to provide such an opinion, he or she should explain why it is not possible.

A rationale should be provided for any opinion offered.

2. After ensuring that all remand directives have been completed, and conducting any other development as may be needed as a consequence of the actions taken, the Veteran's claim should be readjudicated based on the entirety of the evidence.  In doing so, the AOJ should consider whether any higher or separate ratings are warranted in light of the August 2017 VA examiner's determination that his right foot pes planus, plantar fasciitis, and metatarsalgia are related to his service-connected for status post second metatarsal bone stress fracture of the right foot.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs