Citation Nr: 21021966 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-05 757 DATE: April 14, 2021 ORDER Entitlement to service connection for a bilateral foot disability, other than flatfoot (for which the Veteran is in receipt of service connection), is denied. Entitlement to an initial rating for service-connected pseudofolliculitis barbae (PFB) in excess of 10 percent is denied. Entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities is denied. FINDINGS OF FACT 1. The current bilateral foot disorders, other than flatfoot, did not have its onset in service or in the case of arthritis, within one year of service, nor are any of these disorders shown to be related to active military service. 2. The Veteran's PFB symptoms most nearly approximate papular lesions and inflammation affecting between 5 and 20 percent of the exposed body surface area and less than 5 percent of the total body surface area and associated medication use is limited to topical rubbing alcohol with a total duration of less than six weeks during the last 12-month period. 3. The Veteran has been in receipt of at least a compensable rating from October 25, 2013 and prior to October 25, 2013 was service-connected exclusively for hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disability, other than flatfoot, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an initial rating in excess of 10 percent for PFB are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.118, DC 7806 (2017). 3. During the entire period on appeal, there is no legal entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1973 to June 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2014 and June 2016 rating decisions. In August 2019, the Veteran had a Board hearing at his local RO before the undersigned Veterans Law Judge. A hearing transcript is of record. In November 2019, the Board remanded the claims set forth on the title page. The requested development has been completed to extent possible, and these issues are ready for appellate review. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The claims are also subject to the November 2019 Board remand. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran, nor his representative have identified a specific notification or assistance error in connection with these claims, and none has been identified by the Board. For remand development, the agency of original jurisdiction (AOJ) sent the Veteran a November 2019 letter requesting that he identify any private medical records he would like to submit and how to do so. He responded in February 2020 that he did not have additional private medical records to submit. The AOJ proceeded to obtain updated VA treatment records. In October 2020 and December 2020, the Veteran had VA-contract examinations for his foot and PFB claims, respectively. A podiatry medical opinion accompanied the VA-contract foot examination report. The physical examination reports and medical opinions were responsive to the information requested in the November 2019 remand as noted in greater detail below. The above development actions reflect substantial compliance with the November 2019 remand, and there has been no contention to the contrary. With these considerations, the Board finds that appellate adjudication for these claims may proceed without prejudice to the Veteran. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). Service connection for a bilateral foot disability, other than flatfoot Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, may be presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1133; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). Establishing service connection on a secondary basis requires that his current condition was proximately caused or aggravated by a service-connected disability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In March 1973, the Veteran had an enlistment examination that noted flatfeet as a clinical abnormality. On his Report of Medical History, he denied having foot trouble. November 1973 service treatment records (STRs) included complaints about foot pain in both arches. The Veteran reported having preexisting flatfoot but denied ever having pain until he started military service. The foot pain started after marching for a quarter mile. The clinician noted flatfeet with swelling around the ankle and ankle pain in the lateral malleolar region. He recommended arch supports and foot soaks. December 1973 STRs showed that the arch supports were ineffective. A podiatrist assessed severe flatfeet that preexisted service but only became symptomatic during service. He recommended a permanent L3 profile. March 1974 STRs included complaints about foot pain from small boots. January 1975 STRs showed that the Veteran reported a month-long history of right ankle pain. Clinical evaluation confirmed extreme flatfeet with increased pain from flexion, adduction and walking. Another report noted right ankle pain associated with cold weather. June 1978 STRs confirmed that the Veteran continued to have a permanent profile for flatfeet with restricted physical activity. May 1979 separation examination showed that the Veteran's feet were clinically examined and deemed normal. However, the profile given for his lower extremity was noted. On his Report of Medical History, the Veteran denied foot trouble. In August 1979, the Veteran had a VA examination. He reported being treated for bilateral flatfeet in service and receiving a restricted duty profile. Following service, he continued to have pain with activity. He also reported right ankle swelling. Clinical evaluation revealed an enlarged right ankle compared to the left ankle and flat arches. A foot X-ray report noted flattening arches and bony ossicles with possible fracture. The examiner diagnosed bilateral flatfeet. In May 1980, the Veteran had a Board hearing on the issue of entitlement to service connection for bilateral pes planus. He reported that his flatfeet worsened in service with pain and swelling. He also developed ankle problems associated with flatfeet. He stated that his feet were asymptomatic prior to service and his foot symptoms started a few months after enlistment. He then developed ankle pain with the right being worse than the left. He also attributed it to marching on hard surfaces. August 1996 private podiatry records noted a two year history of right foot pain and shorter history of left foot pain. The podiatrist suspected gouty arthritis and hallux limited. August 1997 private podiatry records included complaints about painful heels. The Veteran detailed having toe and heel pain in both feet over the past year. He had failed conservative treatment and surgery was recommended for both large toes. Clinical evaluation and X-ray study were consistent with bilateral heel spur syndrome. Notably, X-ray study confirmed hallux rigidus and heel spur syndrome bilaterally. The podiatrist recommended continued conservative measures before surgery. December 1997 private medical records noted a history of painful, swollen ankles. The Veteran denied any injury or precipitating cause for the pain. Clinical evaluation revealed tenderness and edema. The podiatrist again suspected gouty arthritis. March 1999 private podiatry records recounted that the Veteran had been treated over the past several years for bilateral hallux rigidus limitation of the first metatarsophalangeal (MTP) joint and bilateral heel spurs. The Veteran had also developed left ankle pain. The podiatrist recommended a magnetic resonance imaging (MRI) study. June 1999 left ankle MRI report revealed sagittal oriented tear of the left peroneus brevis inferior and distal to the fibular tip, tear of the superior peroneal retinaculum with overlying edema, mild posterior tibial tendinopathy, hindfoot muscle atrophy and medial subcutaneous edema overlying medial malleolus. April 2000 private podiatry records noted severe bilateral hallux limitus and possible gouty arthritis. November 2000 private podiatry records referred to an X-ray confirming right foot osteoarthritis diagnosis. December 2000 private podiatry records included an assessment of right foot gouty arthritis or tendonitis. May 2001 private podiatry records showed that the Veteran presented X-rays for clinical review. The X-rays confirmed bilateral degenerative changes in the first MTP. In September 2001, the Veteran underwent foot surgery for bilateral hallux limitus rigidus. In July 2002, the Veteran had surgical excision of the left hallux nail. January 2003 private podiatry records noted complaints about generalized bilateral foot pain in the context of severe flatfeet. The podiatrist noted that the Veteran did not have MTP joint pain. In March 2003, the Veteran stated that he enlisted in service with flatfeet but was asymptomatic. However, when he started Infantry exercises, he developed foot pain. He was clinically evaluated and received a permanent restricted duty profile. He continued to have foot pain since then without relief. June 2010 VA primary care records noted marked bilateral flatfeet. June 2013 private medical records showed that the Veteran had a right third digit hammertoe correction procedure. The podiatrist commented that the Veteran had severe joint deformity due to psoriatic arthritis. He also had hallux limitus. In October 2013, the Veteran reported that his bilateral flatfoot was permanently aggravated by military service. In February 2016, the Veteran reported that his flatfoot symptoms started with exertive military activities. He had continuous symptoms since service. At the August 2019 Board hearing, the Veteran reported having foot and ankle problems since service. His symptoms became worse when he started infantry training. However, he needed to work after service and lived with foot pain. He confirmed that he also had swelling and tenderness of both ankles as an associated symptom. He had a permanent profile during service due to his foot pain. He confirmed that he had had continuous symptoms since service. In October 2020, the Veteran had a VA-contract Foot Conditions examination with a physician. The physician listed diagnoses of bilateral flat foot, right foot hammertoe, bilateral hallux valgus, and right foot degenerative arthritis. For the medical history, the Veteran reported that he had asymptomatic bilateral flat feet at enlistment. He developed foot pain during infantry training. He received orthotics and had been using them ever since. The physician recited the medical records. The Veteran described his current foot pain as widespread foot pain with prolonged standing and occurring when he did not have an arch support orthotic. Clinical findings were noted for flat feet, right second and third hammertoe, and bilateral hallux valgus. For right foot surgical history, the physician noted 2001 right great toe bunion surgery, right foot fusion second proximal interphalangeal joint (PIP) for hammertoe in March 2016 and right foot third hammertoe surgery in June 2013. For left foot surgical history, the physician noted the 2001 left great toe bunion surgery. The physician detailed findings concerning diagnostic testing and functional impact. The physician furnished negative medical opinions for the current non-flatfoot podiatry disorders. For direct service connection, she stated that these foot disorders were not shown in medical records until the 1990s or later. For secondary service connection, she noted additional medical conditions of gout and psoriatic arthritis along with the time lapse from service weigh against a relationship to bilateral pes planus on both a causation and aggravation basis. She cited Dr. D’s note that reported hammertoes as secondary to psoriatic arthritis. She reported that the degenerative arthritis was related to gout as indicated by Dr. K’s 2001 report. For the following reasons, the Board finds that while the Veteran has current non-flatfoot disorders of right foot hammertoe, bilateral hallux valgus, and right foot degenerative arthritis, these foot disorders have not been shown to have had their onset in service or in the case of right foot degenerative arthritis, within the first post-service year, or to be otherwise related to a disease or injury in service. As an initial matter, the Veteran is competent to report about his foot pain and foot deformity history. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). However, he does not provide reports dating symptoms, such as pain at affected area or observable deformity more closely associated with bunions, hammertoe or arthritic pain, to service or in the case of arthritis within the first post service year. His reports about general or non-specific foot pain starting in service are reasonably encompassed by his service-connected bilateral flatfeet disability, which is currently rated as 30 percent disabling. With this background, continuous symptoms since service is not reasonably raised by the evidence for any of the non-flatfoot foot disorders. A relationship to service through continuous symptoms starting in service will not be considered further. The Board finds that the issue of a relationship to service for post service non-flatfeet foot disorders is a complex medical question. This is because the issue involves internal medical processes involved in ascertaining the cause or onset for the currently diagnosed non-flatfeet foot disorders. Thus, the relationship question extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Id. Competent medical evidence is required to establish a relationship to service for post service non-flatfeet foot disorders. 38 C.F.R. § 3.159(a)(1). Because the Veteran is not competent to report as a medical expert, any such reports from him about a military relationship have no probative value. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The medical evidence concerning a relationship to service is limited to the October 2020 VA-contract medical opinion, and it weighs against the claim on both a direct and secondary basis. The VA-contract medical opinion is based upon a contemporaneous podiatry examination, detailed review of medical records, and consideration of his reported history. The physician cited the time lapse from service to treatment, and the concurrent medical conditions of gout and psoriatic arthritis. Although the physician notes an absence of medical treatment following service, it is not the sole factor supporting the medical opinion. Overall, the October 2020 VA medical opinion is sufficient in light of the absence of any conflicting medical evidence and symptom history. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate). There is no other medical evidence of a relationship between the Veteran's current non-flatfeet foot disorders and service. Neither he nor his representative has alluded to the existence of any such evidence. For the above stated reasons, the preponderance of the evidence is against the claim for service connection for a bilateral foot disability, other than flatfoot. The benefit-of-the-doubt doctrine is therefore not for application, and service connection for a bilateral foot disability, other than flatfoot, is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Higher initial rating for PFB Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The instant claim is an initial rating claim dating to the Veteran's January 2015 service connection application. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran has a 10 percent initial rating for PFB under Diagnostic Code (DC) 7806 from January 22, 2015. 38 C.F.R. § 4.118, DC 7806. VA recently amended DC 7806, but claims pending on August 13, 2018 may be considered under the pre-amended and amended criteria, whichever is more favorable. 83 Fed. Reg. 32592 (August 13, 2018). In this case, the pre-amended version is more favorable and will be applied. Id.; 38 C.F.R. § 4.118, DC 7806 (2017). Under pre-amended DC 7806, a 10 percent rating requires that at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas be affected, or intermitted systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires that more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs be required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806 (2017). The Board notes that there have been multiple Court rulings on the definition of systemic therapy under DC 7806. However, the record shows that the Veteran only treats PFB with over the counter rubbing alcohol with a duration of less than 6 weeks over the past 12 month period. Discussion of these Court rulings is unnecessary since there is no possibility that it would result in a higher initial rating in this particular case. Id. In May 2016, the Veteran had a PFB examination with a family nurse practitioner (FNP). She diagnosed PFB with a 1973 onset. The Veteran reported that he had not shaved in years because of PFB. He maintained a trimmed beard. He reported that shaving caused him to develop razor bumps. He denied any treatment within the past year since it was controlled without shaving. Physical examination did not reveal any visible skin condition. The FNP summarized that the Veteran had a beard that was not very full and with noticeably curly and short hairs. No papules were found anywhere on the beard or face. August 2017 VA primary care records noted ingrown hair bumps. The clinician assessed recurrent PFB. He advised that the Veteran to trim his beard with a trimmer and not shave too closely. At the August 2019 hearing, the Veteran reported that he was bothered by PFB symptoms. He described itchiness and bumps as associated symptoms. He treated it only by keeping a close trim and denied using any topical medication. He stated that it was impossible to shave because of the pain associated with PFB and it affected his entire face. In December 2020, the Veteran had a VA-contract examination for this claim with a certified physician’s assistant (PA-C). The PA-C diagnosed PFB. The Veteran reported that he recently shaved for the examination. He reported that shaving caused painful, irritated, and itchy bumps along his beard area. He treated it with topical rubbing alcohol. The PA-C reported rubbing alcohol as a topical treatment and that its duration in the past 12 months was less than six weeks. Clinical examination showed PFB affecting a total body area of less than 5 percent and exposed area of between 5 and 20 percent. Functional impact was reported as inability to maintain a job that requires a clean-shaved face. The PA-C reported that a worsening for PFB was found. From the above, the Board finds that an initial rating in excess of 10 percent is not warranted. The PFB symptoms consist of skin irritation with shaving. The treatment is limited to topical rubbing alcohol with an estimated duration of less than six weeks in the past 12 months. The May 2016 VA FNP did not find a visible skin condition while the December 2020 PA-C found that PFB affected an exposed area of between 5 and 20 percent. There is no additional relevant medical evidence. The Veteran does not provide any reports suggestive that a greater area is affected or there is additional medication use. Overall, there is no lay or medical report suggesting that PFB manifested with additional symptoms, a greater affected area, or use of systemic therapy for a total duration of at least six weeks over a 12 month period to warrant consideration of an initial rating in excess of 10 percent under DC 7806. For the foregoing reasons, the preponderance of the evidence is against an initial rating in excess of 10 percent for service-connected PFB. The benefit of the doubt doctrine is not for application, and an initial rating in excess of 10 percent for service-connected PFB is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to a 10 percent rating for multiple, noncompensable, service-connected disabilities pursuant to 38 C.F.R. § 3.324 At the outset, the Board notes that the even though this issue was not addressed by a supplemental statement of the case, the Veteran is not prejudiced in this regard, as there is no legal basis to support his claim. The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of multiple noncompensable service-connected disabilities. As such, once a compensable rating for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). From October 25, 2013, the Veteran has been in receipt of a 30 percent combined disability rating or greater. Prior to October 25, 2013, the Veteran was service-connected exclusively for hypertension with a noncompensable rating. He did not have any additional noncompensable service-connected disability to meet the threshold criteria of multiple noncompensable service-connected disabilities. Therefore, the Veteran's claim for compensation under 38 C.F.R. § 3.324 is rendered moot by the currently assigned ratings. Accordingly, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.