Citation Nr: 21070588 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-12 721 DATE: November 24, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for Morton's neuroma of the right foot to include on an extraschedular basis is denied. Entitlement to a 10 percent disability, but no greater, for right hand painful scar is granted. REMANDED Entitlement to service connection for diabetes mellitus type II is remanded. Entitlement to service connection for right upper extremity neuropathy is remanded. Entitlement to service connection for left upper extremity neuropathy is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for sciatica of the right lower extremity is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. The Veteran is currently in receipt of the maximum rating allowed for his service-connected Morton's Neuroma, right foot. 2. The preponderance of the evidence shows that the schedular rating criteria reasonably describe the Veteran's disability picture regarding his Morton's neuroma. 3. The Veteran's right-hand scar was noted to be painful. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for Morton's neuroma have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5279. 2. The criteria for a disability rating of 10 percent, but no greater, for scar of the right hand have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1974 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues of entitlement to service connection for a low back disability, a sciatic nerve disability, OSA, and TBI for further development in July 2020. The claims have been returned to the Board for appellate review. In July 2020, the Board denied entitlement to service connection for diabetes mellitus, service connection for right and left upper extremity neuropathy, a compensable disability rating for right-hand scar, and a rating in excess of 10 percent for Morton's neuroma of the right foot. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a June 2021 Joint Motion for Remand (JMR) the parties agreed that the Board's decision should be vacated regarding those issues. In June 2021, the Court vacated the Board's decision, and remanded the issue to the Board for action consistent with the JMR. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a disability rating in excess of 10 percent for Morton's neuroma of the right foot. The Veteran asserts that he is entitled to a rating in excess of 10 percent for his Morton's Neuroma, right foot. The Veteran was afforded a VA examination in April 2017. The examiner noted that the Veteran's right foot Morton's Neuroma was removed in 1987 and the Veteran stated that the area hurts when something hard presses on it. The examiner reported that the Veteran did not currently have Morton's Neuroma and did not have metatarsalgia. The examiner reported that there was no pain on examination because nothing was pressing on the area; the region was nontender to palpation, by the examiner. The examiner reported no functional loss or limitation of motion for his right foot and after the Morton's Neuroma removal in 1987, there has been no recurrence. The Veteran's Morton's Neuroma, right foot, is rated as 10 percent disabling under 38 C.F.R. § 4.71a , Diagnostic Code 5279. This Diagnostic Code provides for a maximum 10 percent rating for Morton's disease (metatarsalgia, anterior), unilateral, or bilateral. Metatarsalgia is "pain and tenderness in the metatarsal region." Dorland's Illustrated Medical Dictionary 1145 (32d ed. 2012). The Board acknowledges that the Veteran believes the currently assigned 10 percent rating does not adequately compensate his Morton's Neuroma. However, when a condition is specifically listed in the schedule, rating by analogy is not appropriate. In other words, an analogous rating may be assigned only where the service-connected condition is unlisted. Instead, a listed condition should be rated under the Diagnostic Code that specifically pertains to it. See Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015); see also Suttman v. Brown, 5 Vet. App. 127, 134 (1993). Here, Morton's Neuroma is a specifically listed condition under the schedule and there is no other Diagnostic Code that may be appropriately considered in order to increase the rating for Morton's Neuroma. The Board finds that a higher rating cannot be awarded as a 10 percent rating is the highest schedular evaluation allowed under Diagnostic Code 5279 and there are no other applicable Diagnostic Codes. The June 2021 JMR indicated that the Board did not address extraschedular consideration in the July 2020 Board decision. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that he has complaints and findings of right foot pain. Diagnostic Code 5279 does not specifically list pain, but does note metatarsalgia. Merriam Webster defines metatarsalgia as a cramping burning pain below and between the metatarsal bones where they join the toe bones. See "Metatarsalgia." Merriam-Webster.com Medical Dictionary, Merriam-Webster, https://www.merriam-webster.com/medical/metatarsalgia. (Accessed 19 Nov. 2021). Therefore, the Veteran's symptoms are reasonably covered by the rating criteria, which are listed under Diagnostic Code 5279. The Board notes that limitation of motion of the foot is addressed under the rating for the Veteran's service-connected right ankle disability. The Veteran's Morton's neuroma does not result in additional limitation of motion of the foot. Additionally, for all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Because the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran's disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. 2. Entitlement to a 10 percent disability, but no greater, for right hand painful scar. The Veteran contends that he is entitled to a compensable disability rating for his right hand scar. The Veteran's scar is rated under Diagnostic Code 7804 for unstable or painful scar(s). The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The Board acknowledges that the Veteran has submitted statements indicating that his right hand scar was painful. Additionally, in November 2016, a private examiner noted that the scar on his right hand were elevated and painful. As such, the Board finds that entitlement to a 10 percent disability rating is warranted. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran's scar is not manifest by three or four scars that are unstable or painful. Specifically, the VA examiner in April 2017 noted one scar measuring 3 cm in length. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. Specifically, the April 2017 examiner noted no functional impairment due to his right hand scar. The Veteran is competent to report observable symptoms, to include pain and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that the Veteran's scar manifested with three or four scars that are unstable or painful. In conclusion, the Board finds that a disability rating of 10 percent, but no greater, is warranted for his right hand scar. Therefore, the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 10 percent for a right hand scar. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus type II is remanded. On January 6, 2017, the General Counsel issued a precedential opinion which held that obesity could be an "intermediate step" between a service-connected disability and a current disability and thus satisfy the causal link between the two. VAOGCPREC 1-2017. In such cases where the issue is raised, the adjudicator should resolve three issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused by the service-connected disability. VAOGCPREC 1-2017. The Veteran has asserted that his service-connected ankle has resulted in obesity, which in turn resulted in a diagnosis of diabetes mellitus. The record contains no nexus opinion on this theory of entitlement, as such, a remand is necessary to provide an opinion. 2. Entitlement to service connection for right upper extremity neuropathy is remanded. The Veteran's claim of service connection for diabetes mellitus affects the claims for entitlement to service connection for neuropathy of the lower extremities, as the Veteran is claiming neuropathy secondary to diabetes mellitus; therefore, the service connection claims are inextricably intertwined. Thus, a decision by the Board on the claims for entitlement to service connection for neuropathy would, at this point, be premature. 3. Entitlement to service connection for left upper extremity neuropathy is remanded. Please see the analysis in Remand section 2, above. 4. Entitlement to service connection for a TBI is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for a TBI. Specifically, the Board directed the RO to obtain a nexus opinion from a qualified examiner. The examiner in November 2020 indicated that he was not qualified to provide a nexus opinion and requested that the issue be referred to a qualified examiner. Another opinion is not of record regarding the Veteran's TBI. Therefore, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Entitlement to service connection for a low back disability. The VA examiner in December 2020 found that the Veteran's low back disability was related to his leg length discrepancy, which pre-existed service. The Board notes that the leg length discrepancy and any complaints of low back pain were not noted on the enlistment examination. Therefore, the examiner must determine if the disability clearly and unmistakably pre-existed service, and if so, whether the Veteran's low back disability clearly and unmistakably was NOT aggravated during his active service. Additionally, as the Veteran has asserted obesity as an intermediary step between his right ankle disability and his claimed disabilities, the examiner should also address whether the Veteran's back disability is causally related to or aggravated by his obesity. 6. Entitlement to service connection for sciatica of the right lower extremity. The Veteran's claim of service connection for the low back disability affects the disability considered under his right lower extremity claim; therefore, the service connection claims are inextricably intertwined. Thus, a decision by the Board on the claim for entitlement to service connection for sciatic of the right lower extremity would, at this point, be premature. 7. Entitlement to service connection for OSA. The Board notes that the December 2020 VA examiner determined that the Veteran's OSA was causally related to his obesity. As noted above, obesity can be an "intermediate step" between a service-connected disability and a current disability and thus satisfy the causal link between the two. As such a nexus opinion is required to determine if the Veteran's service-connected right ankle disability caused or progressively worsened his obesity. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to address the etiology of the Veteran's disabilities as enumerated below. Following a complete review of the evidence of record and with consideration of the Veteran's lay statements, assuming the statements are credible for the limited purpose of the request herein, the medical professional is requested to provide the following opinion: The examiner is asked to provide a response to the following: a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected left ankle disability caused the Veteran to become obese? b.) If yes, was the obesity a substantial factor in causing or aggravating (worsening beyond its natural progression) the Veteran's diabetes and/or obstructive sleep apnea? c.) If yes, would the Veteran's diabetes and/or obstructive sleep apnea not have occurred but for the obesity caused by the Veteran's service-connected ankle disability? d.) Did the Veteran's low back disability clearly and unmistakably pre-exist his active service? e.) If yes, was it clearly and unmistakably NOT aggravated, i.e., worsened beyond its natural progression, during service? f.) If no, did the Veteran's low back disability begin in or is it due to any incident of service? A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. 2. Obtain an addendum opinion from a physiatrist, psychiatrist, neurologist, or neurosurgeon, to address the etiology of the Veteran's TBI. Following a complete review of the evidence of record and with consideration of the Veteran's lay statements, assuming the statements are credible for the limited purpose of the request herein, the medical professional is requested to provide the following opinion: Is it at least as likely as not that a TBI was caused by his January 1986 in-service car accident? The examiner should consider the Veteran's service treatment record dated January 28, 1986, which notes his car accident. If a TBI was incurred in service, what are the current residuals? A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patricia Veresink, 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.