Citation Nr: 19147158 Decision Date: 06/17/19 Archive Date: 06/17/19 DOCKET NO. 16-25 357 DATE: June 17, 2019 ORDER Service connection for skin rash under the breast to rib cage is denied. A rating in excess of 10 percent for left foot bunionectomy is denied. REMANDED A compensable rating for scar status post metatarsal osteotomy/metatarsal head osteotomy is remanded. Entitlement to a total rating based on individual unemployability (TDIU) based on service-connected left foot bunionectomy and associated scars is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a rash on her torso. 2. The Veteran has been awarded the maximum 10 percent rating for left foot bunionectomy rated based on unilateral hallux valgus (also known as bunion). CONCLUSIONS OF LAW 1. The criteria for service connection for a rash under the breast to rib cage are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for a rating in excess of 10 percent for left foot bunionectomy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to October 2000. Service Connection 1. Skin rash under breast to rib cage The Veteran seeks service connection for a skin rash on her torso. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis pertaining to a rash on her torso and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records documented that from June 2000 to August 2000 there was an intertriginous rash under the right and left breast. The July 2000 separation examination found normal skin. Thereafter, the February 2002 Army reserve enlistment examination found normal skin and the veteran did not report any skin diseases in the corresponding report of medical history. The January 2013 VA examiner evaluated the Veteran and determined that she had no objective evidence of a rash under her breasts and did not have a diagnosis of a skin condition. The examiner stated that the skin examination was normal. VA and private treatment records associated with the claims file are absent for complaints of a rash involving the torso. The January 2013 VA examiner explained that during service the Veteran had an intertriginous rash under breasts, which resolved with no residuals. The Veteran has not made further specific allegations, beyond filing the claim, as to how or why she believes this rash is currently present. There is no suggestion in the medical evidence of a diagnosed rash of the torso, nor has the Veteran stated that a medical professional has indicated such during the pendency of this appeal. Consequently, the Board finds that the most probative evidence of record is the January 2013 VA examination, as it is the only medical opinion of record. The Board adopts the opinion of the VA examiner, who found that the Veteran’s rash in service resolved without residuals and there is no current skin condition. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In sum, the Board finds that the preponderance of the evidence is against this service connection claim, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating 2. Left foot bunionectomy The Veteran contends that her left foot bunionectomy warrants a higher rating. Her left foot bunionectomy is rated under Diagnostic Code 5280 as 10 percent disabling. Diagnostic Code 5280 provides that a 10 percent rating is warranted for either severe hallux valgus equivalent to amputation of the great toe, or operated hallux valgus with resection of the metatarsal head. Hence, the Veteran is in receipt of the maximum rating available under this Diagnostic Code. The evidence preponderates against finding that the Veteran’s left foot bunionectomy has been characterized by flatfoot, weak foot, claw foot, metatarsalgia, hallux rigidus, hammer toes, or malunion or nonunion of the tarsal or metatarsal bones. Accordingly, the Diagnostic Codes pertaining to those disabilities are not applicable in the instant case. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276, 5277, 5278, 5279, 5281, 5282, 5283 The Board further finds that Diagnostic Code 5284 is not applicable because it is a very general, catch-all provision which is intended to cover a variety of foot disabilities; whereas Diagnostic Code 5280 expressly contemplates bunions. In this regard, the Board notes that when a condition is specifically listed in the Schedule, it may not be rated by analogy. In Copeland v. McDonald, the Court interpreted the regulations governing conditions of the feet and found that the eight foot conditions specifically listed under 38 C.F.R. § 4.71a could not be rated under Diagnostic Code 5284, because “to hold that DC 5284 applies to the other eight listed foot conditions would essentially render those (other) DCs redundant.” Id. at 337-38. As a result, the Board reasons that the Veteran’s symptom complaints do not support a rating under Diagnostic Code 5284 beyond that which is warranted under Diagnostic Code 5280. Accordingly, the Board finds that Diagnostic Code 5280 is the only Diagnostic Code available for evaluation of the left foot bunionectomy. Here, the Veteran has been in receipt of the schedular maximum rating during the pendency of this appeal and there is not a basis for a schedular higher rating. REASONS FOR REMAND 3. Scar status post metatarsal osteotomy/metatarsal head osteotomy The evidence of record is insufficient to evaluate the service-connected scar. The January 2013 VA examination only indicated that there was a scar that was no greater than 6 square inches. The rating criteria for scars was changed during the pendency of the appeal. As of August 13, 2018, whether a scar not of the head, face, or neck is linear or non-linear is no longer relevant. Similarly, under the new criteria whether a scar is deep or superficial is no longer relevant. Consequently, under the new rating criteria the Board needs a specific measurement of the scar and a finding of whether it involves soft tissue damage to determine if it meets the compensable rating criteria. On remand a VA scar examination is needed. 4. TDIU In a May 2016 correspondence, the Veteran stated that she was “let go” from her job in 2014, and then, again with a different employer in 2015 because she could not stand on her feet for the duration of her shift. Thus, a request for TDIU can be reasonably inferred from the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A remand is required prior to adjudication of the claim for TDIU. The Veteran has not been provided adequate notice under the duty to notify requirements of the VCAA of the requirements to substantiate TDIU, nor has the AOJ addressed TDIU in the first instance. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected scar status post metatarsal osteotomy/metatarsal head osteotomy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria prior to August 13, 2018, as well as the rating criteria for scars currently in effect. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to scar status post metatarsal osteotomy/metatarsal head osteotomy on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).   2. Issue a VCAA notice letter to the Veteran concerning a claim for TDIU. Additionally, ask her to fully complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The AOJ should then review the record and adjudicate the issue of entitlement to TDIU. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.