Citation Nr: 20003392 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-05 954 DATE: January 14, 2020 ORDER Entitlement to an initial 10 percent rating for a scar of the right lower extremity is granted. Entitlement to a 50 percent rating for bilateral pes planus is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s scar of the right lower extremity has been painful since the effective date of the award of service connection. 2. The Veteran’s bilateral pes planus is manifested by pronounced symptoms, to include extreme tenderness of plantar surfaces of the feet and severe spasm of the tendo achillis on manipulation, which are not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 10 percent rating for a scar of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7805. 2. The criteria for entitlement to a 50 percent rating for bilateral pes planus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA), which granted service connection for a scar of the right lower extremity and assigned a noncompensable evaluation and increased the evaluation of bilateral pes planus to 30 percent, effective November 30, 2015. The Board observes that following the issuance of the statement of the case (SOC) for the pending appeal, and after this matter was certified to the Board, additional medical records were associated with the Veteran’s electronic claims file. The Board notes that the updated treatment records are duplicative and not relevant to the Veteran’s current claims. Therefore, this evidence is not pertinent to the Veteran’s current issues addressed below and remand for initial agency of original jurisdiction (AOJ) review is not required. See 38 C.F.R. § 19.37(a) (requiring remand for a supplemental statement of the case (SSOC), unless the additional evidence duplicates evidence previously of record which was discussed in the SOC or SSOC or the additional evidence is not relevant to the issue on appeal). The Board also notes that after the appeal was certified and transferred to the Board, the Veteran submitted additional medical records which were associated with the Veteran’s electronic claims file. Since these records were submitted by the Veteran and his VA Form 9 was submitted after February 2, 2013, waiver of AOJ consideration is not necessary. See 38 U.S.C. § 7105(e) (providing that waiver of initial AOJ review of evidence submitted by the claimant or his representative to the AOJ or the Board is presumed in cases where the substantive appeal was filed after February 2, 2013.). In November 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on the Veteran’s average impairment of earning capacity resulting from such disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to an initial 10 percent rating for a scar of the right lower extremity is granted. The Veteran’s scar of the right lower extremity is evaluated under Diagnostic Code (DC) 7805. Diagnostic Code 7805 provides that any other disabling effects of scars which are not considered in a separate rating under diagnostic codes 7800 to 7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018 amendments. DC 7804, which was also unchanged by the August 13, 2018 amendments, provides for a 10 percent rating for one or two scars that are unstable or painful. The Veteran contends that his scar of the right lower extremity is more severe than currently rated. See March 2016 Notice of Disagreement (NOD). A December 2015 private treatment record noted “some” pain with palpation of the lateral aspect of the right foot with palpable scar tissue. See December 15, 2015 Progress Notes. The Veteran was afforded a VA examination for foot conditions in February 2016. The examiner noted a scar on the right foot measuring 9cm x 1cm. The examiner indicated that the scar was neither painful nor unstable. A May 2016 private treatment record noted “some” pain with palpation of the scar on the lateral right foot. See May 5, 2016 Progress Notes. In January 2017 correspondence, the Veteran indicated that the scar on his right foot contributed to his big toe “having very little movement.” See January 2017 VA Form 9. At the November 2019 Board hearing, referenced above, the Veteran testified that his scar was painful and “itch[ed] at times.” He testified that it was painful to put on socks or wear shoes due to the rubbing and the tenderness of his scar. The Veteran’s spouse, E.S., testified that the Veteran often took off his shoes and rubbed ointment on his foot to alleviate the pain. See November 15, 2019 Transcript of Hearing, pages 5-6. In light of the foregoing, the Board finds that the evidence is in relative equipoise as to whether the Veteran is entitled to an initial 10 percent rating for a scar of the right lower extremity under DC 7804. The Board finds the Veteran’s lay assertions about the pain and tenderness of his scar to be highly probative. The Board notes that the Veteran is competent to report symptoms, such as pain and tenderness. Moreover, having had the opportunity to observe his demeanor at the November 2019 hearing, the Board finds the Veteran’s statements to be credible. The Board notes that in addition to the Veteran’s assertions, the December 2015 and May 2016 private treatment records also found the Veteran’s scar to be painful. Although there is negative medical evidence regarding whether or not the scar is painful, namely the February 2016 VA examination, the Board will afford the Veteran the benefit of the doubt and find that the evidence is at least in relative equipoise as to whether the Veteran’s scar is painful. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board has considered the application of other diagnostic codes; however, the Board finds that rating the Veteran’s scar of the right lower extremity under an alternative diagnostic code would not avail him of a higher rating. The clinical evidence reflects that the Veteran’s scar is not on his head, face or neck; does not cover an area of at least 6 square inches; is not deep; and is not associated with underlying soft tissue damage. Therefore, DC 7800, 7801 and 7802 are not for application. 38 C.F.R. § 4.118. Additionally, the Board has considered the Veteran’s contentions that his scar of the right lower extremity contributed to his big toe “having very little movement.” However, the clinical evidence of record reflects that the service-connected scar itself does not produce any limitation of function. Although the Veteran does experience pain, tenderness, and spasms in his right foot, those symptoms have been attributed to his service-connected bilateral pes planus for which he is in receipt of the maximum schedular rating of 50 percent under DC 5276, as awarded by the instant decision. He is also in receipt of separate 10 percent ratings under DCs 5003-5271 for left and right ankle tendonitis with osteoarthritis associated with bilateral pes planus. Quite simply, the record contains no probative evidence that the Veteran’s service-connected scar of the right lower extremity produces additional disabling effects, including pain and limitation of motion, not considered by these ratings. 2. Entitlement to a 50 percent rating for bilateral pes planus is granted. Disabilities of the feet are rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5276 to 5284. The RO has rated the Veteran’s bilateral pes planus under DC 5276. DC 5276 allows for a maximum 50 percent rating for bilateral flatfoot where there is a pronounced disability with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, which is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. The Veteran contends that his bilateral pes planus is more severe than currently rated. See March 2016 NOD. An October 2015 Disability Benefits Questionnaire (DBQ), completed by a private practitioner, noted diagnoses of bilateral pes planus, plantar fasciitis, and arthritis. The physician noted the Veteran’s reports of bilateral foot pain and swelling, especially when the Veteran stood for long periods of time. Upon clinical evaluation, the examiner noted pain on use and manipulation of the bilateral feet. Also noted was swelling on use of the right foot. The Veteran was found to have extreme tenderness of the plantar surfaces of both feet, which was not improved by orthopedic shoes or appliances. Also found was decreased longitudinal arch height of both feet on weight-bearing. The physician did not find objective evidence of marked deformity, marked pronation, or marked inward displacement and severe spasm of the Achilles tendon on manipulation of the feet. The physician indicated that the Veteran’s bilateral foot condition was moderately severe, chronically compromised weight bearing, and required foot orthotics. The physician noted, however, that foot orthotics did not help and that the Veteran required foot surgery. See October 2015 DBQ, received November 2015. The Veteran was afforded a VA examination in February 2016. The examiner noted diagnoses of bilateral pes planus, plantar fasciitis, and degenerative arthritis. The examiner noted the Veteran’s reports of constant bilateral foot pain, which had gotten progressively worse over time. The Veteran reported that he was able to walk and drive, but that it was difficult to work as an electrician due to the pain. The Veteran also reported that he had surgery on his right foot in 2015 and would eventually need surgery on the left foot as well. Upon physical examination, the examiner noted pain on use and manipulation of the bilateral feet. There was no indication of swelling on use. The examiner noted that the Veteran tried arch supports and orthotics, however, he remained symptomatic in both feet. The Veteran was not found to have extreme tenderness of the plantar surfaces of either foot. Decreased longitudinal arch height of both feet on weight-bearing was noted. The examiner did not find objective evidence of marked deformity, marked pronation, or marked inward displacement and severe spasm of the Achilles tendon on manipulation of the feet. The examiner noted bilateral foot pain on physical examination, however, the examiner determined that the pain did not contribute to functional loss. Pain on movement and on weight-bearing was noted. Pain, weakness, fatigability, and/or incoordination that significantly limited functional ability during flare-ups or with repeated use over time were not found. In February 2016 correspondence, Dr. R.M. indicated that the Veteran underwent right foot surgery in June 2015. The procedure included the following: endoscopic gastrocnemius recession, medial calcaneal displacement osteotomy, Evans calcaneal osteotomy with graft insertion, repair of posterior tibial tendon or flexor digitorum longus tendon transfer, and possible navicular cuneiform arthrodesis. See February 2016 correspondence from Dr. R.M. A March 2016 DBQ, completed by a private practitioner, noted diagnoses of bilateral pes planus, plantar fasciitis, and arthritis. The physician noted that the Veteran had been treated for bilateral foot pain since 2012. The physician indicated that months of conservative treatment had failed, which resulted in foot surgery. Upon clinical evaluation, the examiner noted pain on use and manipulation of the bilateral feet. Also noted was swelling on use of the right foot. The Veteran was found to have extreme tenderness of the plantar surfaces of both feet, which was not improved by orthopedic shoes or appliances. Also found was decreased longitudinal arch height of both feet on weight-bearing. The physician did not find objective evidence of marked deformity, marked pronation, or marked inward displacement and severe spasm of the Achilles tendon on manipulation of the feet. The physician indicated that the Veteran’s bilateral foot condition was moderately severe, chronically compromised weight bearing, and required foot orthotics. The physician noted, however, that foot orthotics did not help and that the Veteran required foot surgery. See March 2016 DBQ. A May 2016 private treatment record noted that the Veteran was being seen for a follow-up visit regarding complaints of bilateral foot pain. The Veteran reported pain mostly at the plantar aspect of the first metatarsal head on the left foot, but he also reported pain “somewhat” on the right foot. See May 2016 Progress Notes. A December 2016 VA treatment record noted the Veteran’s reports of bilateral foot pain. The Veteran reported that he received custom orthotics and injections over the past year, however, neither had helped. See December 2016 VAMC Podiatry Outpatient Note. At the November 2019 Board hearing, referenced above, the Veteran testified that he experienced extreme tenderness in his feet throughout the day. He testified that he also experienced severe spasms in his feet when his feet were moved or touched. The Veteran testified that orthopedic shoes helped “some,” however they became “irritating” after a while. He also testified that he took Neurontin to help alleviate the pain in his feet. The Veteran testified that the pain in his feet hindered him from certain activities, such as cooking, going up and down stairs, excessive walking, and showering. He testified that it was difficult to wear sock or shoes because of the pain in his feet. He also testified that he was no longer able to work because he was not able to climb ladders, stand for more than a “couple of hours,” or carry his tool bag from place to place. The Veteran’s spouse, E.S., testified that the Veteran experienced pain in his feet at night and throughout the day. She testified that he could not go up and down stairs or help with the laundry. She also testified that he could not shovel snow. See November 15, 2019 Transcript of Hearing, pages 2-5. In light of the foregoing, the Board finds that the evidence is in relative equipoise as to whether the Veteran is entitled to a 50 percent rating for bilateral pes planus, which is the maximum schedular rating for this disability. In this regard, the Veteran has reported that he suffers from pain, extreme tenderness, and severe spasms in his bilateral feet, not improved by orthopedic shoes, which interfere with daily activities, such as such as cooking, going up and down stairs, excessive walking, and showering. Specifically, the Veteran noted that he is unable to shower because of the pain in his feet and that he has difficulty wearing socks or shoes due to pain and tenderness. The Veteran’s spouse, E.S., also reported that the Veteran is in constant pain and that he is unable to walk up and down stairs, do laundry, and shovel snow. Having had the opportunity to observe the Veteran and his spouse’s demeanor at the hearing, the Board finds the Veteran’s statements, and those of his spouse, to be both competent and credible. As such the Board assigns high probative value to the Veteran’s statements regarding the pain, extreme tenderness, and severe spasms he experiences in his bilateral feet. Additionally, the Board assigns high probative value to the October 2015 and March 2016 private DBQs, which noted pain on use and manipulation of the bilateral feet, swelling on use of the right foot, and extreme tenderness of the plantar surfaces of both feet, as the physician rendered his opinions after eliciting a detailed history from the Veteran and during the course of treatment of the Veteran’s symptomatology. The Board has considered the February 2016 VA examination indicating that the Veteran’s bilateral pes planus was not manifested by extreme tenderness of the plantar surfaces of either foot or marked inward displacement and severe spasm of the Achilles tendon on manipulation of the feet, but finds that in light of the evidence discussed above, including the statements of the Veteran and his spouse, E.S., the October 2015 and March 2016 private DBQs, as well as VA and private treatment records, noting pain, extreme tenderness, and severe spasms which prevented the Veteran from cooking, going up and down stairs, excessive walking, and showering, the evidence is in relative equipoise. Weighing the positive and negative evidence of record, and taking into consideration the competent and credible statements of the Veteran that his bilateral pes planus causes him pain, extreme tenderness, and severe spasms when his feet are moved or touched and interferes with daily activities, such as such as cooking, going up and down stairs, excessive walking, showering, and wearing socks and shoes, the Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of a 50 percent schedular rating for bilateral pes planus. See 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. At the November 2019 Board hearing, referenced above, the Veteran testified that his bilateral pes planus prevented him from working. See November 15, 2019 Transcript of Hearing, page 3. Thus, the record reasonably raises the issue of entitlement to TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the AOJ has not had an opportunity to develop and adjudicate this issue in the first instance, to include providing the Veteran with the formal TDIU application form (VA Form 21-8940), a remand is warranted. Accordingly, the matter is REMANDED for the following action: 1. Develop and adjudicate the issue of entitlement to a TDIU, to include providing the Veteran with the formal TDIU application form (VA Form 21-8940). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, Associate Counsel 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.