Citation Nr: 1825671 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 15-17 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 30 percent disability rating for bilateral pes planus. 2. Entitlement to a rating in excess of 10 percent for left foot hammer toes. 3. Entitlement to a rating in excess of 10 percent for right foot hammer toes 4. Entitlement to a compensable disability rating for scars, right foot and ankle. 5. Entitlement to service connection for type II diabetes mellitus. 6. Entitlement to service connection for a respiratory disability. 7. Entitlement to service connection for a stomach disability, to include gastrointestinal disabilities. 8. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney at Law ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2011 and April 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Newark, New Jersey and St. Petersburg, Florida respectively. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of ratings for bilateral hammer toes and service connection for a respiratory disability, stomach disability and type II diabetes mellitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In viewing the evidence in the light most favorable to the Veteran and giving him the benefit of the doubt, the Veteran's bilateral pes planus most nearly approximates pronounced acquired flat foot. 2. The Veteran's right foot and ankle scar has completely healed and there are no residuals. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent for bilateral pes planus have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a (2017). 2. The criteria for a compensable rating for scars, right foot and ankle, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.118 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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. Increased Ratings i. Bilateral Pes Planus The Veteran contends his pes planus symptoms more nearly approximate a 50 percent disability rating and has requested the Board grant such a rating. See July 2017 representative brief. Upon review of the evidence of record, and resolving doubt in favor of the Veteran, the Board agrees the Veteran's symptoms more closely approximates the criteria of a 50% disability rating. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is currently rated at 30 percent for his bilateral pes planus disability. 38 C.F.R. § 4.71a, Diagnostic Code 5276, provides for a 30 percent rating for severe bilateral acquired flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use; characteristic callosities. A 50 percent evaluation is assigned for pronounced bilateral acquired flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. The Veteran underwent VA examination in March 2013 to evaluate the severity of his pes planus. The examination did not reveal swelling on use or characteristic calluses. However, the examination did reveal bilateral pain, which was accentuated on use and manipulation. Veteran was also noted to have bilateral extreme tenderness of the plantar surface. These symptoms are not relieved by arch supports, orthopedic shoes or appliances. The Veteran has decreased longitudinal arch height on weight bearing, and there was objective evidence of marked deformity of the feet. The examiner did not find marked pronation of the feet, but the weight-bearing line was noted to fall over or medial to the great toe bilaterally. The examiner also did not find inward bowing of the Achilles tendon, or marked inward displacement and severe spasm of the Achilles tendon. In the section of the examination report for additional pertinent findings, the examiner noted tenderness to palpitation lateral aspect plantar surface bilaterally. No scars were found. Additionally, the Veteran constantly uses over the counter shoe inserts. The examination report reflects some, but not all, symptoms considered for both a 30 percent rating e.g. pain on manipulation and use accentuated, and a 50 percent rating e.g. extreme tenderness of plantar surfaces of the feet. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In consideration of this extreme tenderness, and the examiner's finding that it is not relieved by orthopedic shoes or appliances, and resolving doubt in favor of the Veteran, the Board finds such symptomatology more nearly approximates a 50 percent rating for bilateral pes planus. ii. Scars - Right Foot and Ankle The Veteran contends his service-connected right foot and ankle scar more nearly approximates a 10 percent disability rating, because of reported pain in the area where his scar is when he stands. See July 2017 representative brief. The ratings schedule provides several reasons for service-connected scars to be considered compensable, including pain. See 38 C.F.R. § 4.118 (2017). However, upon review of the evidence of record the Board finds such a contention is not supported as the Veteran no longer has a right foot and ankle scar or residuals thereof. The Veteran was initially granted service connection for right foot and ankle scars in December 1967. Nearly four years later, the scar over the Veteran's right Achilles tendon and ankle was found to be well healed and soft. See September 27, 1971 medical record. The Veteran underwent a VA scar examination in March 2013. During the examination, the Veteran reported that when he stands the area of the scar hurts. However, the examiner did not find any scars, stating that there "are no scars on right foot/ankle that I (or nurse) can detect." Furthermore, the examiner stated the Veteran was unable to identify a scar. "He is not sure which foot it was (but record states right heel)". The examiner did not note any symptoms or residuals. A review of the evidence of record does not indicate the Veteran had a scar during the period on appeal. In light of the above, entitlement to a compensable rating for right foot and ankle scars is not warranted as the Veteran no longer has a right foot and ankle scar and the evidence of record does not support any residuals. Instead, the record supports that the Veteran's scar was well healed in 1971 and has since become completely healed and disappeared. The Veteran's report of pain on standing is consistent with the extreme tenderness of the plantar surface that is already compensated for by his service-connected pes planus disability. As discussed in detail below, the record appears to be incomplete. However, remand of the Veteran's scar claim is not warranted, as medical records from after the March 2013 examination will not support the Veteran's claim. In essence, additional records will not change the non-existence of right foot and ankle scars. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (2012); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to a 50 percent rating for bilateral pes planus is granted. Entitlement to a compensable rating for scars, right foot and ankle, is denied. REMAND The Veteran seeks an increased rating for bilateral hammer toes and service connection for a respiratory disability, stomach disability and type II diabetes mellitus. Upon review of the evidence of record, the Board finds additional development is required to ensure compliance with VA's duty to assist. i. Incomplete Record The Veteran has consistently sought treatment from VA providers for his medical needs since 2005. However, the most recent treatment records from VA are from March 2013, but there is no indication the Veteran has stopped seeking medical treatment. To the contrary, as discussed below, the Veteran's representative contends the Veteran had a foot examination in July 2014. Similarly, the last update received from Social Security Administration was in 2014, and the RO has not since sought an update of SSA's records. After SSA finds a claimant is disabled, it must evaluate a claimant's impairments from time to time to determine if the claimant is still eligible for disability cash benefits. See 20 C.F.R. § 404.1589. The frequency of these reviews vary from six months to seven years and require claimants to provide updated medical records and possibly submit to a medical examination by an SSA consultative examiner. See 20 C.F.R. §§ 404.1590(d) (frequency) and 404.1593 (medical records and examination). After obtaining such records and possible examination, SSA issues a Cessation or Continuance of Disability or Blindness Determination and Transmittal, which is subject to appeal to an Administrative Law Judge. See 20 C.F.R. §§ 404.1597 and 404.1597a. In light of the above, the record appears incomplete and such evidence may support the Veteran's claims for service connection for diabetes, respiratory, and gastrointestinal manifestations. Furthermore, with regard to the VA treatment and SSA records, the Board acknowledges that these records are from a Federal facility and that VA has an increased obligation in regard to obtaining records in the custody of a Federal department or agency. See 38 C.F.R. § 3.159 (c)(2) (2017). Remand is warranted to obtain updated records. ii. Bilateral Hammer Toes Examination The Veteran is seeking a 50% rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5278, and currently is rated at 10% under DC 5282. The Veteran contends he has claw foot (pes cavus) in addition to hammer toes. See July 2017 representative brief. The RO granted service-connection for hammer toes and relied on the March 2013 VA examination report. The report contains internally inconsistent statements regarding claw foot. In the report, the examiner checked a box indicating that the Veteran does not have claw foot, but in providing rationale for his opinion that the Veteran's claimed condition is at least as likely as not related to service, the examiner indicated the Veteran does have claw foot. "Clearly his flat feet, claw toes were either not present on entry or they were aggravated since he required a permanent profile." The Veteran's representative contends a July 2014 diabetic foot examiner noted claw deformities, but the most recent medical records are from 2013. Furthermore, the VA examiner did not fill out the section of the examination report that addresses the severity of claw foot. In light of this, remand is required for additional examination to determine the existence and severity of pes cavus. iii. TDIU Determination of the Veteran's service connection and increased ratings claims may directly impact the Veteran's TDIU claim, such that the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Holland v. Brown, 6 Vet. App. 443, 445-46 (1994). As such, remand of the increased rating and service connection claims necessitates remand of the TDIU claim, so that the full scope of the Veteran's service-connected disabilities may be considered in analyzing entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain outstanding VA records of evaluation and/or treatment since March 2013. 2. Contact the Social Security Administration and request all pertinent documentation pertaining to any claim for disability benefits by the Veteran, including any medical records that Social Security has regarding the Veteran, since May 2014. These records should be associated with the claims file. All efforts to obtain the records should be associated with the claim file. 3. Schedule the Veteran for a VA foot examination to determine the existence and severity of bilateral claw foot (pes cavus). 4. In light of any additional evidence added to the record, the AOJ should determine whether additional medical opinions or examinations are necessary pursuant to 38 U.S.C. § 5103A. 5. After undertaking any additional development deemed appropriate, adjudicate the claim in light of any additional evidence added to the record. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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). ______________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs