Citation Nr: 21061364 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 14-40 207 DATE: October 1, 2021 ORDER The continuance of the appeal to the Statement of the Case for the issue of the evaluation of posttraumatic stress disorder sent to the Veteran on August 3, 2012, is denied. Service connection for rheumatoid arthritis is denied. A 10 percent evaluation for bilateral callouses and plantar fasciitis during the entire appeal period is granted. An evaluation in excess of 10 percent for bilateral callouses and plantar fasciitis beginning April 29, 2021, is denied. REMANDED Service connection for osteoarthritis is remanded. Service connection for hyperpigmentation of the skin is remanded. Service connection for an undiagnosed illness or a medically unexplained chronic multisymptom illness, previously claimed as fibromyalgia and chronic fatigue syndrome, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REFERRED The issues of service connection for hallux valgus and service connection for pes planus were raised in a February 2015 statement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. In a December 2010 rating decision, the RO granted service connection for posttraumatic stress disorder and assigned a 50 percent evaluation. The Veteran was provided notice of this rating decision in a March 17, 2011, letter. 2. In April 2011, the Veteran submitted a timely Notice of Disagreement (NOD) to the evaluation of posttraumatic stress disorder assigned in the December 2010 rating decision. 3. On August 3, 2012, or August 6, 2012, at the latest, the RO mailed the Veteran a Statement of the Case addressing the evaluation of posttraumatic stress disorder, including unemployability. 4. A VA Form 9 regarding the evaluation of posttraumatic stress disorder was received by VA on October 29, 2012. 5. The Veteran does not have a current rheumatoid arthritis disability. 6. During the appeal period, the Veteran's bilateral callouses and plantar fasciitis manifest as painful motion with mild plantar fasciitis. Beginning April 29, 2021, the absence of relief from both non-surgical and surgical treatment has not been shown. CONCLUSIONS OF LAW 1. The criteria for timely filing a substantive appeal to the December 2010 rating decision have not been met; thus, the request for appellate review of the issue of the evaluation of posttraumatic stress disorder is dismissed for lack of jurisdiction. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 20.202, 20.302(b). 2. The criteria for service connection for rheumatoid arthritis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Prior to April 29, 2021, the criteria for a 10 percent evaluation for bilateral callouses and plantar fasciitis during the entire appeal period are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 4. Beginning April 29, 2021, an evaluation in excess of 10 percent for bilateral callouses and plantar fasciitis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5269, 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 administrative decision and an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board decision in March 2020 denied the Veteran's claim for continuance of the appeal to the Statement of the Case (SOC) for the issue of the evaluation of posttraumatic stress disorder (PTSD) sent to Appellant on August 3, 2012. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in April 2021, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran and VA General Counsel, to vacate the Board's decision and remand the case for readjudication in accordance with the JMPR. The matter is now back before the Board for review. A Board decision in May 2018 denied the Veteran's claim of an increased evaluation for bilateral foot callouses with plantar fasciitis. The Veteran thereafter appealed the Board's decision to the Court. In an Order dated in August 2019, the Court granted a JMPR to vacate the Board's decision and remand the case for readjudication in accordance with the JMPR. In March 2020, the Board remanded the Veteran's claim for an increased rating for his plantar fasciitis with calluses for an examination. The Veteran underwent a VA examination for his plantar fasciitis with calluses in February 2021. The examination was adequate because it involved a review of the Veteran's claims file, a discussion of his symptoms, and an examination of the Veteran. The examination report describes his disability in sufficient detail to allow the Board to make a well informed determination. The remand also directed the AOJ to obtain updated medical records, and this was done. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The matter is now back before the Board for review. 1. Timeliness of substantive appeal. The Veteran, through his attorney, argues that the Statement of the Case mailed to the Veteran on August 3, 2012, was issued prematurely because VA had not fulfilled its duty to assist in the underlying case. Specifically, the attorney argues that VA did not seek Social Security Administration records in support of the appealed issue of the evaluation of posttraumatic stress disorder, including total disability rating based upon individual unemployability. The April 2021 JMPR found that the previous Board decision did not provide adequate reasons and bases for its finding that the Veteran's VA Form 9 was not timely filed within 60 days as to the issue of the evaluation of PTSD. The JMPR found that it was unclear whether the Veteran received proper notice of the SOC and if so, when. The JMPR cited four possible notification letters to the June 2012 SOC. The JMPR noted that "none provide adequate notification of VA's decision and [the Veteran's] right to appeal." According to the JMPR, two of the notification letters are identical to each other, except that one has the date of August 3, 2012, and the other has no date at all. The JMPR continues that neither of these notification letters reference the date, or claims, of the SOC for which they are supposed to be notification letters. The other two notification letters are identical to each other, as well, except that one has an August 3, 2012, date, and the other has an August 6, 2012, date. However, these notification letters reference an attached Rating Decision, and an attached Statement of the Case, but they do not say for which claim the rating decision and SOC relate. The notification letters reference continuing Veteran's 50 percent PTSD rating in addition to denying his individual unemployability claim, but do not include information as to Appellant's right to appeal his PTSD claim; they only reference his right to appeal the individual unemployability claim, according to the JMPR. The Board's review of the case in light of the JMPR now follows. The Board's authority to review an adverse Agency of Original Jurisdiction (AOJ) decision is initiated upon a claimant's submission of a Notice of Disagreement (NOD) and completed by a substantive appeal after a Statement of the Case (SOC) has been furnished. 38 U.S.C. §§ 7105 (a); 38 C.F.R. § 20.200. As relevant to the instant case, a substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information. 38 C.F.R. § 20.202. In this regard, a substantive appeal should set out specific arguments relating to errors of fact or law made by the AOJ in reaching the determination being appealed. The Board will construe such arguments in a liberal matter for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC to the claimant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 C.F.R. § 20.302 (b)(1). In determining its jurisdiction, the Board must be cognizant that the VA adjudicative system is non-adversarial and pro-claimant in nature wherein pro se filings are liberally and sympathetically construed. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 20.101 (d). The AOJ may close the case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32), but a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.101(d). In this case, the AOJ issued a rating decision in December 2010, which granted service connection for posttraumatic stress disorder (PTSD) and assigned a 50 percent evaluation. The Veteran was notified of this decision in a correspondence dated March 17, 2011. In April 2012, the Veteran submitted a timely NOD as to the evaluation of PTSD. The claims file shows that on June 22, 2012, the AOJ issued an SOC. On the same date, a rating decision was issued denying the Veteran entitlement to a TDIU. The claims file shows a Statement of the Case cover letter date stamped August 3, 2012, noting a Form 9 was enclosed. No SOC was a part of that document. The Board finds that this does not necessarily mean no SOC was, in fact, enclosed. Nonetheless, the record also contains a full copy of the same cover letter with the June 2012 SOC included as part of that document. The date shown in the electronic record as the receipt date (meaning the date received by VA) is August 3, 2012. This document also notes that a VA Form 9 was enclosed. Although it is not date-stamped, the date is was sent can be reasonably inferred by the receipt date of that document and the date on the date stamped version of the SOC cover letter where an SOC is not shown as included with the document. The Board finds that it is reasonable to infer that either the June SOC was included with the date-stamped version, or that, for record-keeping purposes, only the cover letter was date stamped for the file copy. Indeed, the date-stamped cover letter is also stamped with "Official File Copy." This is similar to how the SOC cover letter notes a VA Form 9 was enclosed, however, no copy of it is included with the document as shown in the record. It is a reasonable inference that the Form 9 was enclosed. Furthermore, there is a presumption of regularity that attaches to the actions of public officials. Woods v. Gober, 14 Vet. App. 214, 220 (2000). The presumption of regularity has been applied to different types of VA processes and procedures. See, e.g., Schoolman v. West, 12 Vet. App. 307, 310 (1999) (applying presumption as to whether RO sent to claimant the application form for dependency and indemnity compensation). It has been held that there is a presumption of regularity that VA properly discharged official duties by mailing a copy of a VA decision to the last known address of the claimant and the claimant's representative, if any, on the date that the decision is issued. See Woods, 14 Vet. App. at 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (applying the presumption of regularity to official duties of the RO). A claimant may rebut that presumption by submitting clear evidence to the effect that VA's regular mailing practices are not regular or that they were not followed. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). An appellant's statement of non-receipt, standing alone, is not the type of "clear evidence to the contrary" which is sufficient to rebut the presumption of regularity of the notice. Mindenhall, 7 Vet. App. at 274. Absent evidence that the claimant notified VA of a change of address and absent evidence that any notice sent to the claimant at his last known address has been returned as undeliverable, VA is entitled to rely on that address. See Cross v. Brown, 9 Vet. App. 18, 19 (1996). Not only do multiple copies of an SOC cover letter, one without a date stamp but noted in the electronic record as having been "received" on the same date as the date-stamped copy, not rise to clear evidence to rebut the presumption of regularity, the Veteran himself, through his attorney, acknowledged the issuance of the SOC as being August 3, 2012. Specifically, in the December 3, 2012, correspondence from the Veteran's attorney, the attorney states "VA prematurely issued the Statement of the Case dated August 3, 2012, ...." There was no argument at the time that indicates there was improper notice of the SOC or that it was not mailed on August 3, 2012. Accordingly, the presumption of regularity has not been rebutted. As the Board finds the Veteran was provided a full and complete copy of the SOC and its cover letter, along with the VA Form 9, it will continue addressing the procedural aspect of the case. A timely substantive appeal was not received from the Veteran with regard to the issue of the evaluation of PTSD. Initially, the Board notes that an August 20, 2012, statement from the Veteran does not express disagreement with the evaluation of PTSD. Rather, it expresses disagreement only with the lack of finding that the Veteran is unemployable. Thus, the statement does not meet the requirements for a substantive appeal, which should set out specific arguments relating to errors of fact or law made by the AOJ in reaching the determination being appealed. The Board finds that, because of this lack of anything approaching specificity as to wanting to continue the appeal for the evaluation of PTSD, the August 20, 2012, statement cannot be used as a substitute for a VA Form 9. An actual VA Form 9 was received by VA on October 29, 2012, according to the date stamp. The Board finds this document is untimely, as it was not received within 60 days of the mailing of the Statement of the Case, and it was not received within one year from the date of mailing of the notice of the December 2010 rating decision, March 17, 2011. The JMPR explained that the four possible notification letters for the June 2012 SOC did not provide adequate notification of VA's decision and the Veteran's right to appeal. In response, the Board finds that, in fact, the August 3, 2012, SOC cover letter did explain the Veteran's rights. Specifically, the cover letter stated: What You Need To Do To complete your appeal, you must file a formal appeal. We have enclosed VA Form 9, Appeal to the Board of Veterans' Appeals, which you may use to complete your appeal. We will gladly explain the form if you have questions. Your appeal should address: the benefit you want the facts in the Statement of the Case with which you disagree; and the errors that you believe we made in applying the law. When You Need To Do It You must file your appeal with this office within 60 days from the date of this letter or within the remainder, if any, of the one-year period from the date of the letter notifying you of the action that you have appealed. If we do not hear from you within this period, we will close your case. If you need more time to file your appeal, you should request more time before the time limit for filing your appeal expires. See item 5 of the instructions in VA Form 9, Appeal to Board of Veterans' Appeals. The cover letter also expressly stated: "Enclosure(s); VA Form 9." The SOC itself also contains a recitation of 38 C.F.R. § 19.32, addressing the closing of an appeal for failure to respond to the SOC. Therefore, the Veteran was provided with adequate notice of how to continue his appeal. The JMPR indicated that the notice of the rating decision denying a TDIU was mailed in the same packet as the SOC and that therefore there was a question as to whether the Veteran could have made a reasoned decision about appealing his claim for individual unemployability and/or PTSD. The Board finds that the notification of the rating decision denying a TDIU was not mailed in the same envelope or package as the SOC and its cover letter. The Board makes this inference based on common sense that a large organization such as VA would have separate tasks, such as the mailing of the rating decision and the mailing of the SOC, being performed by separate people or at least at different times. Alternatively, it provided reasonable ways for the Veteran to understand how to respond to the SOC (and therefore, the PTSD evaluation) because of the notice paragraphs discussed above, and because of the enclosed VA Form 9. For further background, in parallel to the issuance of the SOC for the evaluation of PTSD, a rating decision denying entitlement to a TDIU was issued. It was issued the same date as the June 2012 SOC. The electronic file shows a one-page cover letter that appears to be incomplete date-stamped as August 3, 2012. A few days later, the same cover letter is provided in the electronic record in full, with an electronic date stamp of August 6, 2012. This cover letter states that the decision on appeal was made, and that it contains a copy of the rating decision and statement of the case. It went on to explain that the evaluation for PTSD had not changed, and that VA denied entitlement to the 100 percent rate. Next, the August 6, 2012, notice letter provides: "What You Should Do If You Disagree With Our Decision," and states that "if you do not agree with our decision for the issue of individual unemployability (IU), you should write and tell us why. You have one year from the date of this letter the appeal the decision. The enclosed VA Form 4107, 'Your Rights to Appeal Our Decision," explains your right to appeal." It next directs the Veteran to refer to the statement of the case to continue his appeal rights for posttraumatic stress disorder. These statements and those discussed above with regard to the SOC cover letter, clearly notify the Veteran of his appeal rights The Veteran's attorney argues that VA prematurely issued the August 2012 SOC to an unrepresented Veteran without properly requesting records from the Social Security Administration. Therefore, the attorney argues, the SOC is not final. The Board finds that the attorney's arguments are without merit. There is no provision regarding the timing of the issuance of the SOC that have been violated in this case. The SOC was issued after the receipt of the notice of disagreement. Whether or not VA has complied with its duties to assist by requesting SSA records is a matter for the underlying appeal for which the SOC was issued, and such failure in no way operates to invalidate an SOC. As such, there is no need to find that an SOC is final or not final. The regulations are clear. A Veteran has a certain time period in which to file a substantive appeal after the issuance of a SOC. In this case, the Veteran did not meet those time requirements. Similarly, the Veteran's representation status also does not have an impact on the validity of the SOC. Veterans may elect not to have representation in VA appeals and the lack of representation does not invalidate the appeal. The Board acknowledges that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). As a timely filed substantive appeal is not a jurisdictional bar to Board review, the Board cannot raise a timeliness objection in a particular case if the appellant filed an untimely substantive appeal and the RO had, nonetheless, treated the claim as timely appealed for more than five years, and certified the issue to the Board, and after the Board identified the issue at a hearing and took testimony on the issue. See Percy, 23 Vet. App. at 45. VA, however, has not waived this requirement in this case and declines to do so at this time. Here, unlike in Percy, VA has not by its actions implicitly waived timely receipt of a substantive appeal from the Veteran addressing these issues. Furthermore, the AOJ specifically informed the Veteran his appeal was untimely in December 2012 and in September 2014. As such, the issue of timeliness of the substantive appeal has not been waived at any time, either explicitly or implicitly. Based on the foregoing, the Veteran did not file a timely substantive appeal as to the issue of the evaluation of PTSD. Accordingly, the Board does not have jurisdiction to review the issue and it is dismissed. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Service connection for rheumatoid arthritis is denied. The Veteran seeks service connection for Gulf War Syndrome including rheumatoid arthritis. 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 of rheumatoid arthritis 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). Although the Board recognizes that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity," Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Veteran's muscle and joint pains are considered in the other issues on appeal. VA examiners in June 2011, October 2019, March 2021 evaluated the Veteran for rheumatoid arthritis. The VA examiners in June 2011 and March 2021 found the Veteran did not have rheumatoid (or inflammatory) arthritis. The October 2019 VA examiner did state that the Veteran has rheumatoid arthritis. However, this conclusion is contradicted by the laboratory testing conducted just prior to the examination. Specifically, October 2019 laboratory tests showed a Rheumatoid factor test result of <14 against a reference range (i.e. normal) of <14. Accordingly, the Board gives little credibility to the October 2019 VA examiner's conclusion that the Veteran has a diagnosis of rheumatoid arthritis. The Board finds the laboratory testing more specific and credible. The other VA examiners' conclusions also support the negative finding for rheumatoid arthritis. Moreover, the March 2021 VA examiner reported that the Veteran stated he was not diagnosed with rheumatoid arthritis, instead he was diagnosed with osteoarthritis in the past. While the Veteran claimed rheumatoid arthritis indicating that, at least at one point, he believed he had rheumatoid arthritis, his belief has been inconsistent. Furthermore, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires knowledge of specific internal disease processes and their diagnostic manifestations as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The record does not show that the Veteran has the skills, experience, or medical training needed to self-diagnose rheumatoid arthritis. Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, the claim must be denied. 3. An evaluation in excess of 0 percent for bilateral feet callouses and plantar fasciitis prior to April 29, 2021. 4. An evaluation in excess of 10 percent for bilateral feet callouses and plantar fasciitis beginning April 29, 2021. The Veteran contends that he is entitled to a higher rating for his foot disability. The Veteran's disability is currently rated under Diagnostic Code 5269 for plantar fasciitis. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that are more favorable to the Veteran will be applied. Prior to the regulatory change, there was no Diagnostic Code 5269 for plantar fasciitis. Instead, the Veteran's disability was rated by analogy to Diagnostic Code 5284, for other foot injuries. Diagnostic Code 5284, Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree". See www.merriam-webster.com/dictionary/severe. As of February 7, 2021, under the amended criteria, plantar fasciitis is rated under Diagnostic Code 5269. Under Diagnostic Code 5269, a 10 percent rating is warranted for plantar fasciitis, otherwise, unilateral or bilateral. A 20 percent rating is warranted for unilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. A maximum 30 percent rating is warranted for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). On this record, a June 2011 VA examination report stated that VA podiatry treatment notes "...document hallux valgus bilaterally (no pain)...", and right second toe hammer toe. The Veteran complained of bilateral discomfort on the bottoms of both feet. The Veteran used a walker for feet and back disabilities. On physical examination, there was tenderness over bottoms of both feet. The diagnosis was bilateral mild plantar fasciitis and right second hammer toe, which was "asymptomatic." A September 2012 examination report addendum show current callouses and plantar fasciitis are as likely as not a continuation of the foot complaints in service. The examiner found that pes planus and hallux valgus were less likely as not a continuation of foot complaints during service. VA treatment records of June 2015 reflect a complete foot examination was conducted. After clinical examination, the examiner found normal sensation, normal and present pulses, no deformity, and no ulceration. A February 2021 VA examination showed a report of sharp, burning pain in his ankles and between the big toes. He has had cortisone shots between his big toe and second toe. He uses Ibuprofen. He was recently diagnosed with diabetes. He also receives cold treatment on his calluses. The examiner reported that there was no pain on examination or the pain was of no clinical significance. There was no functional loss for the lower extremities attributable to the plantar fasciitis with calluses. Passive range of motion testing was not painful in either foot and there was no pain during weight-bearing. The examiner found there was no limitation of functional ability on repeated use over time or during flare-ups. The Board finds that a 10 percent rating for the entire appeal period is warranted. Although this Veteran's disability is not rated based on limitation of motion, the Board finds that limitation of motion is likely affected in plantar fasciitis. Accordingly, a 10 percent evaluation under 38 C.F.R. § 4.59 for painful motion is warranted. The preponderance of the evidence is against a rating in excess of 10 percent for plantar fasciitis with calluses for the entire appeal period. With respect to the regulations in effect prior to February 7, 2021, plantar fasciitis with callouses manifested as no more than a moderate foot disability. The June 2011 VA examination showed the plantar fasciitis was mild, with the only symptom being intermittent foot pain and pain on the bottoms of both feet when he stands for over 25 minutes. Moreover, the February 2021 VA examination showed clinically insignificant pain on examination and no functional loss attributable to the plantar fasciitis with calluses. VA treatment records show foot pain, however, several diabetic foot examinations show no other evidence relating to plantar fasciitis that would change the rating. The Board acknowledges the Veteran's credible lay reports of symptoms of pain. However, the Veteran's reports have been considered in the analysis. His descriptions of his pain that is from his service-connected plantar fasciitis and calluses do not more closely approximate moderately severe disability because he does not have additional symptoms other than non-painful calluses and he is able to stand for over 25 minutes without pain. His pain has been described as "intermittent," which means his pain is not continuous or steady, and this does not support a finding that his disability is moderately severe. Significantly, at his February 2021 VA examination, he did not report having any functional loss or impairment due to his pain. With respect to the rating criteria in effect beginning February 7, 2021, a higher evaluation is also not warranted. The February 2021 examiner's report that the Veteran's pain is clinically insignificant indicates that non-surgical treatment has been effective. Moreover, there is no indication that surgical treatment has been warranted or attempted. The record does not show that the Veteran was a candidate for surgery, but that surgery was not performed. The 30 percent evaluation requires no relief from both non-surgical and surgical treatment. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. A 10 percent rating is being granted in this decision. Diagnostic Codes 5277 (weak foot), 5279 (metatarsalgia (Morton's disease), 5280 (hallux valgus), 5281 (hallux rigidus), and 5282 (hammer toe) all have a maximum evaluation of 10 percent and are therefore not more favorable to the Veteran. The Veteran's symptoms are not more analogous to Diagnostic Code 5276, which addresses pes planus. For a 30 percent rating under this Diagnostic Code, the bilateral foot disability would need to be analogous to severe flat foot with objective evidence of "marked" deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. The only symptom from the Veteran's plantar fasciitis with calluses that is contemplated by these criteria is calluses. Even though all of the criteria do not need to be shown for an analogous rating, here the Veteran only has one out of four due to his plantar fasciitis: calluses. His service-connected plantar fasciitis does not result in a deformity. Furthermore, the record shows that he does not have severe pain due to his plantar fasciitis. The February 2021 VA examiner acknowledged the Veteran's report of sharp, burning pain in both feet and described it as being "of no clinical significance." This does not support a finding that his symptoms are "severe." The Veteran's plantar fasciitis does not produce symptoms analogous to claw foot. For a 30 percent rating under Diagnostic Code 5278, bilateral clawfoot would need to result in all toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads. When rating by analogy, disabilities rated under analogous codes will not necessarily show all objective criteria in the analogs Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470 (2006). However, none of these criteria are present. Even though the Veteran has plantar fasciitis, no deformity of the fascia is of record. The February 2021 VA examiner specifically found no shortened plantar fascia. His toes do not tend to dorsiflexion, and his plantar fasciitis does not limit his ankle movement. A 30 precent rating by analogy is not warranted. For a 50 percent rating under Diagnostic Code 5258, bilateral claw foot would need to show marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity. Diagnostic Code 5258's 50 percent criteria clearly contemplate a disability picture more severe than what is caused by the Veteran's plantar fasciitis. The 50 percent criteria list "very painful callosities," and the VA treatment records show that the Veteran has calluses, and that he had been instructed to use a pumice stone and lotion to try to soften them. But the record does not show that they are painful. The 50 percent criteria describe "marked" contraction of the plantar fascia "with" dropped forefoot. They contemplate "marked" varus deformity. The Veteran does not have a foot deformity at all, other than his nonservice-connected pes planus, or any symptoms akin to a dropped forefoot. Therefore his symptoms are not analogous to marked deformities. The criteria also contemplate "all" toes being hammer toes. The Veteran has two hammer toes on each foot, which is not analogous to "all," given that more of his toes are not hammer toes. Read as a whole, the criteria set forth for the 50 percent rating for claw foot contemplate severe symptoms involving deformities. The Veteran's plantar fasciitis with calluses does not result in a foot deformity other than two hammer toes on each foot. Therefore Diagnostic Code 5278 is not appropriate. Diagnostic Code 5283 addresses malunion or nonunion of the tarsal or metatarsal bones. A 20 percent rating contemplates moderately severe disability. The Veteran's plantar fasciitis is not analogous to a problem with the tarsal or metatarsal bones. Fascia is a connective tissue, which is not analogous to a bone. Fascia is a sheet or band of fibrous tissue such as that which lies deep to the skin or forms an investment for muscles and various other organs of the body. Dorland's Illustrated Medical Dictionary, 679 (32nd ed. 2012). The plantar fascia is a deep fascia of the sole of the foot. Id. A bone is a hard form of connective tissue that constitutes the majority of most of the skeleton which is the rigid framework of the body. Id. at 236. Bones and fascia do not have the same function. Additionally, the Veteran's symptoms of pain do not more closely approximate malunion or union of bones. Malunion of a bone is the result of a fracture hearing in a faulty position. Id. at 1100. Nonunion is a failure of the ends of a fractured bone to unite. Id. at 1289. The Veteran's pain from his plantar fasciitis in the sole of his foot, which is not the same place as a bone. His symptoms do not encompass his bones. Diagnostic Code 5283 is not appropriate. Here, prior to February 7, 2021, the Veteran's disability is unlisted and rated by analogy. In this regard, although the Veteran has diagnoses of pes planus, hallux valgus, and hammer toe, they are not service-connected. The Veteran's service-connected foot disability is bilateral foot calluses and plantar fasciitis. Diagnostic Code 5256 pertains to pes planus and Diagnostic Code 5280 applies to hallux valgus. The June 2011 VA examiner specifically stated that pes planus and hallus valgus are not related to service. Diagnostic Code 5282 applies to hammer toe, and the June 2011 VA examiner specifically found that callouses and plantar fasciitis are due to service when asked to determine what other foot disabilities were related to service. REASONS FOR REMAND 1. Service connection for osteoarthritis is remanded. The Board cannot make a fully-informed decision on the issue of service connection for osteoarthritis because no VA examiner has opined whether the Veteran's degneerative arthritis of the lumbar and cervical spine (as shown by, for example, the July 2021 VA lumbar spine and neck examinations) is secondary to his service-connected posttraumatic stress disorder (PTSD). In a March 2021 correspondence, the Veteran's attorney raises the theory that the Veteran's arthritis is secondary to his PTSD, asserting that PTSD may change microRNA and cause inflammation. The representative cites the article "Inflammation in those with PTSD linked to changes in microRNA," available at https://www.sciencedaily.com/releases/2014/04/140424102843.htm. An opinion considering this theory is required. The July 2021 VA opinion regarding degenerative arthritis notes the process of inflammation in its reasoning. Furthermore, the July 2021 VA opinion is confusing and seemingly contradictory in its determinations related to whether or not there is a degenerative arthritis diagnosis, and accordingly, whether the etiology and pathophysiology is understood. In the remarks, the clinician stated that there is no diagnosis because there are no findings, signs and or symptoms to support a diagnosis, yet the clinician marked a diagnosis of degenerative arthritis in the diagnosis section. Finally, the opinion as to direct service connection is incomplete as its rationale inappropriately relies solely on silence in the medical record. An opinion or examination is inadequate where the examiner relies solely on a lack of evidence in service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). 2. Service connection for an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI), claimed a fibromyalgia and chronic fatigue syndrome. The Veteran seeks service connection for Gulf War Syndrome, including fibromyalgia and chronic fatigue syndrome. Service connection may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 because the Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. Under these provisions, service connection may be granted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia Theater of Operations during the Persian Gulf War. For disabilities due to undiagnosed illness and medically-unexplained chronic multisymptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of Operations or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317 (a)(1). There are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. An undiagnosed illness is a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness, unlike in claims for direct service connection, there is no requirement of competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more, the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. 38 C.F.R. § 3.317 (a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illness (MUCMI) is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). Fibromyalgia and chronic fatigue syndrome are identified by VA regulation as qualifying for the presumptions associated with 38 C.F.R. § 3.317. Here, however, VA examinations show the Veteran does not have chronic fatigue syndrome or fibromyalgia. Nonetheless, the Veteran may still qualify for service connection if he otherwise has an undiagnosed illness or a MUCMI. In this regard, the Board finds that remand is warranted because the VA examiners have not adequately explained whether the Veteran has objective indications of a qualifying chronic disability and whether those indications are the result of an undiagnosed illness or a MUCMI. In that regard, the Veteran has reported pain in the back, neck, lower extremities, and wrists. See e.g. June 2011 VA examination. At the October 2019 VA examination, the Veteran reported chronic pain in the hands and feet, shoulders, and headaches. In a March 2021 VA examination, the Veteran reported difficulty sleeping due to PTSD, pain to the right wrist, and waking up with headaches. The March 2021 VA examiners found no fibromyalgia and chronic fatigue syndrome due to lack of objective and subjective data. As to an undiagnosed illness or MUCMI, the examiner concluded that the Veteran's other comorbidities such as diabetes and osteoarthritis could be a contributing factor to pain, but the examiner was unable to delineate the Veteran's current complaints between multiple diagnoses without resorting to mere speculation due to overlapping symptomology between conditions. The Board finds that the examiner did not provide a rationale for the inability to draw conclusions without resorting to speculation. Additionally, the examiner did not provide an opinion as to whether the etiology and pathophysiology of the Veteran's pain is understood. 3. Service connection for a skin disability is remanded. Remand is required to obtain a medical opinion. A March 2021 VA examination indicates the Veteran has a diagnosis of hyperpigmentation. The pathophysiology and etiology of this condition is unclear. Accordingly, on remand, a medical opinion must be obtained to discuss these matters. 4. Entitlement to a total disability rating based upon individual unemployability is remanded. The Board has insufficient information to adjudicate the claim. The only VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability, was submitted in September 2011. The Veteran did not identify which service-connected disabilities he believes prevented him from securing or following a substantially gainful occupation. In the June 2011 VA examination the Veteran asserted that he held 40 jobs since service and that he last worked in 2008. At that time, he reported he was laid off, but not due to medical problems. He asserts that PTSD contributes to his inability to work and relate to others. The Board finds that remand is warranted for the Veteran to submit an updated VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability, and for the Regional Office to conduct further development related thereto. The matters are REMANDED for the following action: 1. Ask the Veteran to complete an updated TDIU claim form identifying which service-connected disability(ies) have prevented him from working. 2. Conduct additional development, such as employer verification, as may be warranted to assist the Veteran in establishing his claim for a TDIU. 3. Obtain an addendum medical opinion that addresses the Veteran's claimed osteoarthritis, now diagnosed as degenerative arthritis of the lumbar and cervical spines and joint pains. The clinician is to provide an opinion as follows: A) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran's objective indications can be attributed to a known clinical diagnosis (in this case degenerative arthritis of the cervical and lumbar spines), is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, service, including his report of neck stiffness, low back pain, and paratrooper activity in service, and playing football with fellow soldiers? G) Is the Veteran's degenerative arthritis and degenerative disc disease of the lumbar spine proximately due to his service-connected PTSD? H) Is the Veteran's degenerative arthritis and degenerative disc disease of the lumbar spine increased in severity beyond its normal progression (i.e. aggravated) by his service-connected PTSD? For the foregoing two questions, the clinician should address the theory that the Veteran's arthritis is secondary to his PTSD, asserting that PTSD may change microRNA and cause inflammation. The representative cites the article "Inflammation in those with PTSD linked to changes in microRNA," available at https://www.sciencedaily.com/releases/2014/04/140424102843.htm The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Obtain an addendum medical opinion that addresses the Veteran's skin hyperpigmentation. The clinician is to provide an opinion as follows: The examiner is asked to provide responses to the following: A) Is the etiology of the Veteran's hyperpigmentation (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. B) Is the pathophysiology of the Veteran's hyperpigmentation (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. C) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hyperpigmentation was incurred in, or is otherwise related to, his active service, including to environmental exposures in Southwest Asia? For the foregoing opinion, the clinician should address the claims that exposure to sand particles can stimulate a severe and perhaps chronic allergic immune response and that hyperpigmentation can result from allergic reactions. See "Diseases and Agents of Special Concern to Veterans of the Gulf War, Operation Iraqi Freedom, and Operation Enduring Freedom," available at https://www.nqp.edti/read/I1765/chapter/8; "Postinflammatory Hyperpigmentation" available at https://emedicine.medscape.com/article/1069191-overview. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Obtain an addendum medical opinion that addresses the Veteran's claimed pain in various locations, previously evaluated as fibromyalgia and chronic fatigue syndrome. The clinician is to provide an opinion as follows: A) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran's objective indications can be attributed to a known clinical diagnosis (in this case degenerative arthritis of the cervical and lumbar spines), is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, service, including his report of neck stiffness, low back pain, and paratrooper activity in service, and playing football with fellow soldiers? In rendering this opinion, the clinician's attention is called to a report of pain in the back, neck, lower extremities, and wrists. See e.g. June 2011 VA examination. Additionally, at the October 2019 VA examination, the Veteran reported chronic pain in the hands and feet, shoulders, and headaches. In a March 2021 VA examination, the Veteran reported difficulty sleeping due to PTSD, pain to the right wrist, and waking up with headaches. At September 2013 VA treatment the Veteran reported having muscle cramps and weakness in the legs- about 1-2 months and 'tremors' in his arm muscles. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.