Citation Nr: 21072654 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-40 996A DATE: December 3, 2021 ORDER Entitlement to a rating in excess of 30 percent for residuals of a left foot gunshot wound (to include pain, weakness, numbness, hyperesthesia, and sensory deficits) is denied. Entitlement to an initial staged rating in excess of 10 percent for left foot scar status/post gunshot wound prior to May 31, 2016 is denied. Entitlement to an initial staged 10 percent rating, but no higher, for left foot scar status/post gunshot wound is granted, effective May 31, 2016. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for left foot arthritis is remanded. FINDINGS OF FACT 1. The Veteran's 30 percent rating for residuals of a left foot gunshot wound represents the maximum schedular rating. 2. The Veteran has had one or two painful scars on his left foot associated with his service-connected gunshot wound, and no more, throughout the period on appeal. 3. The Veteran's left foot scars are not unstable and are less than 39 square centimeters in area. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent for service-connected residuals of left foot gunshot wound are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.55, 4.56, 4.73, Diagnostic Code (DC) 5311. 2. The criteria for a 10 percent disability rating, but no higher, for left foot scar status/post gunshot wound have been met, effective May 31, 2016, but no earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. 3. The criteria for a disability rating in excess of 10 percent for left foot scar status/post gunshot wound have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1973 to June 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2008 (left foot gunshot wound, hypertension, and left foot arthritis) and July 2016 (left foot scar) rating decisions. The June 2016 rating decision granted service connection for scar, left foot, status post gunshot wound, and assigned an evaluation of 10 percent effective September 4, 2007 and a noncompensable evaluation effective May 31, 2016. Accordingly, as the scar of the left foot is part and parcel of adjudication of entitlement to a higher rating for the service-connected left foot gunshot wound, as in other adjudicative actions by VA, the Board will adjudicate the issue for entitlement to an increased staged initial rating for the scar of the left foot. These matters were previously before the Board in August 2019, at which time they were remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. They now return for appellate review. Additional reference to the Veteran's disabilities is presented in the evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran's disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. INCREASED RATING Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, or the process of rating the same disability under multiple DCs, is to be avoided. 38 C.F.R. § 4.14. However, VA may assign multiple ratings for separate and distinct symptoms so long as none of the symptoms overlap. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000). 1. Entitlement to a higher rating for residuals of left foot gunshot wound The Veteran contends that he is entitled to a rating in excess of 30 percent for residuals of his service-connected left foot gunshot wound (left foot disability). The current claim for increase for the Veteran's left foot disability stems from a September 4, 2007 informal claim for increase. Thus, the period for consideration on appeal is from one year prior to the date of receipt of the claim for increase, if it is factually ascertainable that an increase occurred during that period. In April 2019, during the course of the appeal, a rating decision was issued that granted an increased rating, from 10 percent to 30 percent, for the Veteran's service-connected left foot disability, effective September 4, 2007. The rating for the Veteran's left foot disability was rated pursuant to the criteria found at 38 C.F.R. § 4.73, DC 8525-5311. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned). The hyphenated diagnostic code assigned for the Veteran in this case indicates that the Veteran's residuals were based on paralysis of the posterior tibial nerve, and muscle injury to group XI muscle of the left foot. The RO applied the rating criteria for DC 5311, and it described the disability as "Gunshot wound left foot with retained metal fragments; muscle group X, XI, XII injury; pseudo joint 3/4 metatarsals; & peripheral neuropathy posterior tibial nerve." Thus, the rating considers symptoms including pain, weakness, hyperesthesia, numbness, and other sensory deficits associated with the gunshot wound, muscle injury, retained metal fragments, pseudo joint (also referred to as pseudoarthrosis), and peripheral neuropathy (or, nerve impairment). DC 5311 contemplates disabilities to muscles including the posterior and lateral crural muscles and muscles of the calf, including the triceps surae (gastrocnemius and soleus), tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus, and plantaris. The functions of these muscles are propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. 38 C.F.R. § 4.73, DC 5311. Under DC 5311, a moderately severe muscle disability warrants a 20 percent rating, and a severe muscle disability warrants a 30 percent rating. Severity assessments as used in DC 5311 are defined under 38 C.F.R. § 4.56(d). The Veteran has already been awarded the highest schedular rating under 38 C.F.R. § 4.73, DC 5311 based on the symptoms described above. Further, there is no other more applicable diagnostic code for which a higher disability rating than 30 percent would be available for the Veteran's symptoms. The Board acknowledges that the Veteran has a variety of diagnoses in his file in addition to muscle group injury, to include pseudo joint or pseudoarthrosis, neuritis, neuralgia, peripheral neuropathy, and metatarsalgia. However, separate evaluations cannot be awarded for these diagnoses without violating 38 C.F.R. § 4.55(a) (which prohibits assigning separate ratings for muscle injury and peripheral nerve paralysis for the same body part "unless the injuries affect entirely different functions") and § 4.14 (Avoidance of Pyramiding). Specifically, neuritis, neuralgia, and peripheral neuropathy are all evaluated under the peripheral nerve diagnostic codes, and thus cannot be separately evaluated from the muscle group injuries because medical evidence shows that the Veteran's muscle and nerve injuries do not "affect entirely different functions" in this case. Similarly, separate evaluation of pseudoarthrosis or pseudo joint and metatarsalgia would constitute pyramiding because the primary compensated symptoms would be pain, which is also a symptom contemplated under DC 5311. Even if one of the above-noted diagnoses could feasibly be awarded as a separate evaluation without pyramiding, doing so could not result in a higher paid compensation in this Veteran's case. The Amputation Rule, 38 C.F.R. § 4.68, states that "[t]he combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed." In this case, that means that because amputation of the forefoot is rated at 40 percent under 38 C.F.R. § 4.71a, DC 5166, the total combined rating for the disabilities affecting the use of the Veteran's left foot cannot be greater than 40 percent. Using the combined ratings table in 38 C.F.R. § 4.25, the Veteran's ratings for his left foot disability (30 percent throughout the period on appeal) and left foot scar (10 percent throughout the period on appeal, granted below) result in a 37 percent disability rating. Under § 4.25, a 37 percent disability rating is rounded up to 40 percent. As mentioned above, the Board's analysis in this case must further consider whether any factually ascertainable increase in disability is shown to have occurred within one year prior to the date of the claim, September 4, 2007, and met the criteria for an increased rating at that time. However, the Board finds that no factually ascertainable increase in the Veteran's left foot impairments is shown during the pertinent one-year period. Accordingly, there is no basis for changing the disability rating for the left foot disability prior to September 4, 2007, the date of the Veteran's claim. 38 C.F.R. § 3.400(o)(2) In sum, the Board finds that the Veteran is already in possession of the highest compensable rating under the applicable schedular criteria, and thus entitlement to a rating in excess of 30 percent for the left foot disability is denied. 2. Entitlement to a higher initial rating for left foot scar The Veteran contends that he is entitled to a compensable rating throughout the period on appeal because his left foot scars are painful. The rating period for consideration is from September 4, 2007, the date service connection was awarded. Throughout the appeal period, the Veteran's service-connected left foot scar has been rated under DC 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, DC 7804 was not changed by the August 13, 2018, amendments. Under DC 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 DC 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. As discussed above, in the July 2016 rating decision on appeal, the Veteran was granted service connection for "scar, left foot, status post GSW" with a 10 percent evaluation from September 4, 2007 to May 30, 2016, and a noncompensable rating thereafter. As an initial matter, the Board notes that a separate compensable rating for painful scarring does not violate the avoidance of pyramiding rule in this Veteran's case because the scar has been found to be superficial and painful, but not associated with underlying soft tissue damage. See Jones v. Principi, 18 Vet. App. 248, 260 (2004) (holding that a Veteran rated for muscle injury may also receive a separate compensable rating for a superficial and painful scar under 38 C.F.R. § 4.56, so long as the scar is not associated with underlying soft tissue damage). E.g., C&P Examination dated January 2017 (finding the scar is superficial and non-linear). The Board finds that the scar on the top of the Veteran's foot has been painful throughout the period on appeal, to include after May 31, 2016. Although the May 2016 VA examination stated in one area that the Veteran's scar was not painful, unstable, or greater than 39 square cm, it also noted separately in the examination that the area was tender to palpation. Further, a January 2017 VA examination found that the scar was painful and tender to palpation; and the Veteran has submitted lay statements also reporting ongoing pain associated with his left foot scar. While the February 2020 examination indicated that the scar was no longer visible, the existence of the scar tissue has been thoroughly documented throughout the record and there is no evidence that the area stopped being painful. All reference to whether a scar is visible in the rating criteria is made in relation to DCs other than 7804. Thus, as the Veteran has one painful, superficial scar, the criteria for entitlement to a 10 percent rating is met throughout the period on appeal. However, the Board also finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under DC 7804 because the Veteran's scar is not manifest by three or four scars that are unstable or painful. The Board has also considered the other DCs pertaining to scars. However, the Veteran's left foot 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 is approximately 1.5 square centimeters, and thus does not cover an area or areas of 144 square inches or greater. Therefore, DCs 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 that have not been considered in a rating provided under DCs 7800-04, as contemplated under both pre- and post-August 13, 2018, DC 7805. For instance, though the Veteran has also reported hyperesthesia on the top of his foot, the medical evidence indicates that the sensation is due to peripheral nerve and muscle tissue damage that is separately considered under DC 5311 above. The Board acknowledges that the Veteran reported that his scar has "periodic scaling." In providing more specific information, the Veteran reported "about once a year or so, the entrance wound scar becomes dry and scaly." This does not amount to making the scar "unstable" because the describe "dry and scaly skin" does not amount to "loss of covering of skin over the scar." Further, once a year is cannot be considered frequent under any definition of the term. Because of the small area of skin involved, the minor nature of the "periodic scaling," the infrequency of occurrence, and because the Veteran has not reported requiring topical or systemic therapy, the Board finds the Veteran's reported scaling also would not be separately compensable under any other DC under 38 C.F.R. § 4.118 (Schedule of Ratings Skin). Additionally, the Veteran has never argued that he is entitled to a rating in excess of 10 percent. Rather, he has argued that he is entitled to a 10 percent rating throughout the entire period on appeal. See Statement in Support of Claim dated August 2016. In conclusion, the Board finds that the Veteran is entitled to a 10 percent rating, and no higher, throughout the period on appeal. REASONS FOR REMAND 1. Entitlement to service connection for hypertension A February 2020 VA examination found that the Veteran is properly diagnosed with hypertension but provided negative opinions as whether his hypertension was caused by service, proximately due to service-connected disability, or aggravated by service-connected disability. While the record supports the negative opinion as to direct service connection, the examiner's own secondary opinion gives rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step with mobility limitations or reduced physical activity as a result of a service-connected physical disability. Garner v. Tran, 33 Vet. App. 241, 248 (2021). Further, the Veteran's medical records are replete with statements indicating the Veteran has been unable to exercise due to his left-foot disability and encouraging him to find ways to exercise in order to better control his hypertension. E.g., Medical Treatment Record dated March 2015; CAPRI records dated April 2011, July 2015. The examiner also appears to have incorrectly assumed that service-connected disability must be the sole cause of disability or means of aggravating a disability in order to provide a positive nexus opinion. For instance, the examiner indicated that the Veteran's hypertension was aggravated by a medication that caused low blood pressure (which actually appears to conflict with the medical evidence of record, see CAPRI records dated August 2013, August 2016), and so concluded that the medication was the cause of any aggravation shown in the Veteran's medical records. Thus, remand is required to obtain an addendum opinion. 2. Entitlement to service connection for left foot arthritis In the Board's August 2019 remand, it directed the RO obtain an opinion as to whether the Veteran's diagnosed left foot arthritis is caused or aggravated by his service-connected gunshot wound or its residuals. The February 2020 opinion issued in response indicated that there was no arthritis on current imaging and declined to provide a nexus opinion. However, the record contains, at a minimum, a clear diagnosis of arthritis of the talonavicular joint from February 2019. Thus, it is necessary to obtain an opinion that properly addresses the evidence of record. Further, there are conflicting diagnoses of record for substantially similar findings at the site of the Veteran's gunshot wound. For instance, a VA podiatrist diagnosed the Veteran with posttraumatic arthritis of the third and fourth metatarsals on the left foot in January 2009 based on x-ray findings; while the February 2019 x-ray noted above diagnosed the Veteran with "pseudo joint or pseudo arthrosis" of the third and fourth metatarsals on the left foot. Although the RO's April 2019 rating decision granting an increased rating for the Veteran's left foot disability included "pseudo joint 3/4 metatarsals" in the grouped diagnoses, there is no evidence addressing the conflicting diagnoses or explaining whether pseudo joint/pseudo arthrosis are considered substantially the same or distinct diagnoses from arthritis. Therefore, it is also necessary to obtain an opinion clarifying that issue. The matters are REMANDED for the following actions: 1. Attempt to associate with the record all outstanding VA and non-VA treatment records. 2. Obtain addendum opinions from an appropriate clinician regarding the nature and etiology of the Veteran's hypertension, with examination only if deemed necessary by the clinician. After review of the claims file, the clinician is asked to provide a response, with a rationale to support each proffered opinion, to the following: (a.) Is it at least as likely as not that the Veteran's service-connected left foot disability caused the Veteran to become obese? Please explain; (b.) Is it at least as likely as not that the Veteran's service-connected left foot disability aggravated (any increase in disability) the Veteran's obesity? Please explain; (c.) If the answer to (a) or (b) is yes, is it at least as likely as not that the obesity or aggravation of obesity as a result of the Veteran's service-connected left foot disability was a substantial factor in causing hypertension? Please explain, and; (d.) If the answer to (a) or (b) is yes, is it at least as likely as not that the Veteran's hypertension would not have occurred but for the obesity caused or aggravated by the Veteran's service-connected left foot disability? 3. Obtain addendum opinions from an appropriate clinician regarding the nature and etiology of the Veteran's claim for left foot arthritis, with examination only if deemed necessary by the clinician. After review of the claims file, the clinician is asked to provide a response, with a rationale to support each proffered opinion, to the following: (a.) Reconcile the diagnoses of left foot arthritic talonavicular joint, posttraumatic arthritis of the third and fourth metatarsals, and pseudo joint and pseudoarthrosis of the third and fourth metatarsals. If the Veteran is found not to have any such diagnosis, the clinician should provide an explanation for any such discrepancy (for example whether the condition resolved or the diagnosis was made erroneously). See Medical Treatment Record dated September 2016; C&P Examination dated February 2019, See CAPRI Record dated January 2009; C&P Examinations dated May 2016, January 2017, February 2019; Medical Treatment Record dated September 2016. (b.) For each identified disability, is it at least as likely as not that the disability is proximately due to the Veteran's service-connected left foot disability? Please explain; (c.) For each identified disability, is it at least as likely as not that the disability is aggravated (any increase in disability) by the Veteran's service-connected left foot disability? Please explain. 4. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beeler, C. 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.