Citation Nr: 18123741 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-28 599 DATE: August 2, 2018 ORDER For the entire period on appeal, entitlement to a disability evaluation of 10 percent, but no higher, for left foot hammertoes is granted. For the entire period on appeal, entitlement to a disability evaluation of 10 percent, but no higher, for right foot hammertoes is granted. Entitlement to a compensable rating for residual scars of the left and right feet is denied. REMANDED Entitlement to service connection for major depressive disorder and alcohol dependence with psychological dependence is remanded. Entitlement to service connection for scoliosis is remanded. FINDINGS OF FACT 1. During the appeal period, the Veteran’s service-connected left foot hammertoes have been manifested by pain, stiffness, and tenderness with movement in the second, third, fourth, and fifth digits on the left foot. 2. During the appeal period, the Veteran’s service-connected right foot hammertoes have been manifested by pain, stiffness, and tenderness with movement in the second, third, and fourth toes on the right foot. 3. The Veteran’s residual scars of bilateral hammertoes surgery are not painful, tender, or unstable on examination; are not deep or nonlinear in an area at least 6 square inches or 39 sq. cm.; are not superficial and nonlinear in an area of at least 144 square inches or 929 cm.; and do not cause any limitation of function. CONCLUSIONS OF LAW 1. For the entire period on appeal, resolving reasonable doubt in favor of the Veteran, the criteria for a disability evaluation of 10 percent, but no higher, for the Veteran’s service-connected left foot hammertoes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5282. 2. For the entire period on appeal, resolving reasonable doubt in favor of the Veteran, the criteria for a disability evaluation of 10 percent, but no higher, for the Veteran’s service-connected right foot hammertoes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5282. 3. The criteria for a compensable rating for residual scars of the left and right feet have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 2006 to July 2010. During his period of service, he earned the Navy and Marine Corps Achievement Medal, Meritorious Unit Commendation, Navy “E” Ribbon, National Defense Service Medal, Global War on Terrorism Service Medal, Sea Service Deployment Ribbon, Pistol Marksmanship Ribbon, Enlisted Surface Warfare Specialist Badge, and Enlisted Aviation Warfare Specialist Badge. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran’s entire history is reviewed when assigning disability ratings. See generally 38 C.F.R. § 4.1. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Left and Right Foot Hammertoes When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). In this case, the Veteran is currently in receipt of a noncompensable evaluation for left and right foot hammertoes pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5282. Under that diagnostic code, a noncompensable evaluation is assigned for single hammer toe. A 10 percent evaluation is warranted for unilateral hammertoes involving all toes without claw foot. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 10 percent evaluation for his service-connected left foot and right foot hammertoes. The Veteran appeared for a VA foot conditions examination in January 2011. The examiner diagnosed bilateral residuals of surgery for hammertoes. The Veteran reported undergoing surgery for bilateral hammertoes in December 2007 and June 2009. The Veteran indicated that he experienced pain in the left foot while standing and walking, as well as stiffness when at rest. He reported experiencing decreased movement of the operated toes while walking. The Veteran further indicated that he experienced pain in the right foot while standing and walking, as well as stiffness while walking and at rest. He also reported experiencing decreased movement of the operated toes. Functional limitations included an ability to stand for up to one hour and walk more than a quarter mile, but less more than one mile. The examiner noted that the Veteran experienced flare-ups lasting between thirty to sixty minutes weekly or more often. The Veteran indicated that the flare-ups were precipitated by running, prolonged standing, or excessive walking and were alleviated by massaging his feet. The Veteran reported that he had to take breaks while walking on the college campus during flare-ups and stated that he had difficulty concentrating in class. The examiner noted objective evidence of tenderness with movement of the metatarsophalangeal (MTP) joints of the second, third, fourth, and fifth toes on the left foot. The examiner also noted objective evidence of painful motion and tenderness with movement of the MTP joints of the second, third, and fourth toes on the right foot. The Veteran appeared for another VA foot conditions examination in April 2015. The examiner diagnosed bilateral hammertoes. No pain or flare-ups were reported at the time of examination. The examiner indicated that there was no functional loss in the left nor right lower extremities attributable to hammertoes. The examiner further indicated that there was no additional or increased pain, weakness, fatigability, or incoordination which could significantly limit the Veteran’s functional ability during flare-ups, or when used repeatedly over a period of time. The evidence of record shows that the Veteran had residuals of hammertoes manifested by pain, stiffness, and tenderness with movement of the MTP joints of the second, third, fourth, and fifth toes on the left foot; and of the second, third, and fourth toes on the right foot during the course of the appeal. Based on the clinical evidence reflecting residuals of hammertoes affecting the second, third, fourth, and fifth toes on the left foot; and of the second, third, and fourth toes on the right foot, the Board finds the Veteran’s left foot and right foot hammertoes more closely approximates hammertoes affecting all toes. As such, resolving reasonable doubt in favor of the Veteran, the Board finds that a 10 percent rating disability (the maximum under the diagnostic code) is warranted for left foot hammertoes, as well as right foot hammertoes. The Board has considered additional Diagnostic Codes for the feet; however, there is no other rating code that would allow a separate compensable and/or increased rating for the Veteran’s symptoms. The Veteran has not been diagnosed with flatfoot (DC 5276), weak foot (DC 5277), claw foot (DC 5278), Morton’s disease (DC 5279), hallux valgus (DC 5280), hallux rigidus (DC 5281), malunion or nonunion of tarsal or metatarsal bones (DC 5283), or other foot injuries (DC 5284) that have been associated with the service-connected bilateral hammertoes. As such, the Board does not find that a separate compensable and/or increased rating for those Diagnostic Codes is warranted. For the foregoing reasons, the maximum schedular rating under DC 5282 of 10 percent is warranted for left foot hammertoes and right foot hammertoes, each. As the preponderance of the evidence is against any higher schedular rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Residual Scars The residual scars associated with the left and right foot hammertoes are rated as noncompensable under DC 7805. The rating criteria for the skin provide compensable ratings for scars that are deep and nonlinear and affect at least 39 square centimeters (Diagnostic Code 7801); are superficial and nonlinear and affect at least 929 square centimeters (Diagnostic Code 7802); are unstable or painful (Diagnostic Code 7804); or limit function (Diagnostic Code 7805). See 38 C.F.R. § 4.118. The Veteran appeared for a VA foot conditions examination in January 2011. The examiner noted that the Veteran had residual linear scars, which were stable and asymptomatic, on the dorsum of the second, third, fourth, and fifth toes of the left foot. The examiner further noted that the Veteran had residual linear scars, which were stable, asymptomatic, and nontender, on the dorsum of the second, third, and fourth toes of the right foot. The examiner indicated that the scars were not adherent to the underlying structures and there were no keloids. The Veteran also appeared for a VA scars/disfigurement examination in April 2015. The examiner noted linear scars measuring three centimeters over the second, third, and fourth dorsum toes of the bilateral feet. Here, the medical evidence indicates that the residual scars have not resulted in scarring that is tender, unstable, or nonlinear, or that limits function. As such, the residual scars do not warrant compensable ratings under any diagnostic code pertaining to scars. As the preponderance of the evidence is against the claim for a compensable rating for residual scars of the left and right feet associated with surgery for bilateral hammertoes, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Major Depressive Disorder The Veteran appeared for a VA mental disorders examination in January 2011. The examiner diagnosed chronic moderate major depressive disorder and alcohol dependence with physiological dependence. The examiner opined that it was more likely than not that the Veteran has suffered from depression since childhood, which continued through service and upon discharge. The examiner further opined that the Veteran’s psychiatric problems started in childhood and had continued since that time. The examiner indicated that the Veteran’s experiences in the Navy brought out both the best and worst in the Veteran; however, the Veteran’s psychiatric disorders led to his being discharged from the Navy. The Veteran appeared for another VA mental disorders examination in May 2015. The examiner diagnosed major depressive disorder with anxious distress. The examiner opined that it was less likely than not that the Veteran’s current condition was caused by alcohol abuse or depression on the date cited. The examiner noted that the Veteran had a maternal and paternal family history positive for alcohol abuse which placed the Veteran in a high-risk category. Based on the examination and the documentation reviewed, the examiner concurred with the January 2011 examiner, opining that the Veteran’s current problems started in childhood and continued to the present. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304. A review of the Veteran’s service treatment records shows that the Veteran indicated “no” in response to questions pertaining to psychiatric conditions, to include if he had nervous trouble of any sort (anxiety or panic attacks), depression or excessive worry, been evaluated or treated for a mental condition, or attempted suicide, and no psychological condition was otherwise noted. Accordingly, the Veteran is presumed to be sound with regard to major depressive disorder as it was not noted at entry. To rebut the presumption of soundness, VA must show that clear and unmistakable evidence demonstrates both that the Veteran’s disability pre-existed his service and that it was not aggravated by his service. Id. Here, the Board finds that the January 2011 and May 2015 VA examiners did not apply the correct legal standard (clear and unmistakable evidence) when opining that the Veteran’s diagnosed psychiatric disability pre-existed service. Additionally, the Board finds that the examiners did not opine as to whether the Veteran’s diagnosed psychiatric disability was aggravated by his service. As such, the Board finds that this claim must be remanded for a new VA examination and opinion. Scoliosis In his December 2010 claim, the Veteran claimed that he had been seen in service for scoliosis, but no treatment had been rendered. The RO denied the Veteran’s claim in a January 2011 rating decision on the basis that scoliosis is a congenital defect for which service connection is inapplicable. The Board notes that while scoliosis can be a congenital defect, this is not always the case. Congenital or developmental defects are not “diseases or injuries” within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). Rather, a defect of congenital, familial, or hereditary origin by its very nature pre-exists military service. Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). If the defect is congenital, therefore, the presumption of sound condition at service entrance does not attach. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2002); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects). If it is determined that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have pre-existed service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted based on aggravation. There is a distinction under the law between a congenital or developmental disease and a congenital defect for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental defect, on the other hand, may not be service-connected although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82-90. Here, there has been no medical finding that the Veteran’s scoliosis is a congenital defect. In contrast, even if the Veteran’s scoliosis is a congenital defect, the Board finds that no opinion has been rendered as to whether the Veteran’s spine condition was aggravated by his military service. The Veteran appeared for a VA general medical examination in January 2011. The examiner noted lower back pain and indicated that the Veteran was diagnosed with scoliosis in 2007. At the time of examination, the examiner noted that the Veteran had failed to appear for spine x-rays. As such, the examiner offered no opinion regarding the nature and etiology of the Veteran’s claimed spine disability. However, the Board finds that it is not clear from the record that the Veteran received adequate notice to appear for the indicated testing, as the examiner noted that the Veteran had been unable to be reached. In light of the foregoing, the Board finds that a remand is warranted for a new VA examination and opinion to determine the nature and etiology of the Veteran’s spine disability. In this regard, the Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate psychologist or psychiatrist to address the nature and etiology of any acquired psychiatric disabilities, to include major depressive disorder. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner must identify all psychiatric disabilities present during the pendency of the appeal and proximate thereto. The examiner must identify all current psychiatric disorders. If any previously diagnosed disorder is no longer present, the examiner must provide an explanation. After providing any current diagnoses pertaining to the claim for an acquired psychiatric disorder, the VA examiner should offer the following opinions: (a.) Is there clear and unmistakable (i.e., undebatable) evidence that the Veteran’s acquired psychiatric disability pre-existed his active duty service? Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. If clear and unmistakable evidence is found, it must be clearly identified for the record. (b.) If yes, is it clear and unmistakable that the pre-existing acquired psychiatric disability was not aggravated (i.e., permanently worsened) beyond its natural progression during his service? (c.) If it is the examiner’s opinion that there is no clear and unmistakable evidence that the bilateral foot disability was not aggravated by service, the Veteran is presumed sound at service entrance, and the question becomes one of direct service connection. In this case, the VA physician is requested to answer: Is at least as likely as not (a 50 percent or greater probability) that the Veteran’s acquired psychiatric disability had its onset during active service, or is otherwise related to active service? Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Schedule the Veteran for a VA examination with an appropriate examiner to address the nature and etiology of his spine disability. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. Any indicated studies should be performed, including X-rays. Based upon a review of the relevant evidence of record, the VA examiner should offer the following opinion: (a.) Does the Veteran have a current spine disability, to include scoliosis? (b.) If scoliosis is diagnosed, please determine whether such diagnosis is a developmental defect or a developmental disease. For VA purposes, a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. (c.) If the Veteran’s scoliosis is a congenital defect, is it at least as likely as not that the Veteran incurred a superimposed disease or injury due to the Veteran’s service? If so, please describe the resultant disability. (d.) If the Veteran’s scoliosis is a congenital or development disease, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that the back disability existed prior to active service? (e.) If so, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that the pre-existing low back disability WAS NOT aggravated (i.e., permanently worsened beyond the natural progress of the disease) during service? If aggravation is found, the examiner should address the baseline manifestations of the disorder found prior to aggravation. (f.) If the answer to either (d) or (e) is no, is it at least as likely as not (probability of 50 percent or more) that any currently diagnosed spine disability had its onset during active service, or is otherwise related to active service? (Continued on the next page)   Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel