Citation Nr: 21031676 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-29 603 DATE: May 24, 2021 ORDER Service connection for right foot pes planus is granted. An initial rating of 10 percent for right foot calluses is granted. REMANDED An initial rating in excess of 10 percent disabling for right knee degenerative joint disease (DJD) is remanded. FINDINGS OF FACT 1. The Veteran's right foot pes planus was aggravated by his service. 2. The Veteran has two painful scars on the right foot which each measure three centimeters or less. CONCLUSIONS OF LAW 1. The criteria for service connection for right foot pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for a disability rating of 10 percent for right foot calluses are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DCs 7819, 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to December 1992 and from August 2006 to May 2007. The present matter is on appeal from a May 2013 rating decision. In November 2018 and February 2020, these issues were remanded by the Board. 1. Right foot pes planus The Veteran seeks service connection for right foot pes planus. See May 2016 VA Form 9. He reported that he began having pain with marching and walking in service, and that the condition has been progressing. See March 2020 VA examination. The Veteran's June 2005 examination prior to his second period of service shows pes planus, moderate, asymptomatic. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). A December 2006 examination shows pes planus, moderate, symptomatic. A March 2007 examination shows pes planus, mild to moderate, symptomatic. The Veteran has a current diagnosis of right foot pes planus, which is moderate. See October 2019 and March 2020 VA examinations. The March 2020 VA examiner provided a positive nexus opinion regarding the Veteran's pes planus and his service. The examiner determined that the Veteran's pes planus was aggravated beyond its normal progression due to multiple jumps during service. The Board finds that this opinion is the most probative evidence of record as the examiner conducted an in-person examination and provided sufficient rationale for his conclusion. The Board acknowledges the April 2013 and October 2019 VA examiners, and June 2020 VA addendum opinion provided negative nexus opinions. The November 2018 Board remand found that the April 2013 VA examiner's opinion was inadequate as the examiner failed to provide rationale for his conclusion. Accordingly, an October 2019 VA examination was provided. However, the October 2019 VA examiner failed to adequately address aggravation. The June 2020 clinician determined that the condition was not aggravated by service as the discharge examination showed that the severity remained moderate; and determined that his position as an administrative specialist at the end of his second tour of duty would not cause aggravation. The Board finds that this medical opinion is also inadequate as the VA clinician fails to consider that the Veteran's pes planus was asymptomatic at the start of his second tour of duty, and became symptomatic during service, as noted above. The Board finds the presumption of aggravation has not been rebutted in this case. Accordingly, service connection for right foot pes planus is warranted. 2. Right foot callus The Veteran seeks a higher rating for his service-connected right foot callus. See May 2016 VA Form 9. The Veteran's right foot callus was rated under 38 C.F.R. § 4.118, DC 7819. Pursuant to DC 7819, benign skin neoplasms are rated as disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or impairment of function. During the pendency of this appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended. When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board has considered all applicable criteria in evaluating the Veteran's claim. Prior to August 13, 2018 DC 7800 provides for burn scars of the head, face or neck, scars of the head, face, or neck due to other causes, or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, DC 7800. Under DC 7800, a 10 percent rating is warranted for a scar with one characteristic of disfigurement. A 30 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Note (1) to DC 7800 provides that the eight characteristics of disfigurement for purposes of evaluation are: a scar five or more inches in length; a scar at least one-quarter inch wide at the widest part; surface contour of the scar elevated or depressed on palpation; a scar adherent to the underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and skin indurated and inflexible in an area exceeding six square inches. 38 C.F.R. § 4.118. Under the DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are evaluated as: area or areas of 144 square inches (929 sq. cm) or greater (40 percent); area or areas of at least 72 square inches (465 sq. cm) but less than 144 square inches (929 sq. cm) (30 percent); area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) (20 percent); and area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm) (10 percent). Under the DC 7802, scars not of the head, face, or neck, which are superficial and nonlinear are granted a 10 percent rating if they cover an area of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional rating under DC 7804, when applicable. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be rated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. Since August 13, 2018 Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). DC 7800 remained the same. DC 7801 was amended to remove "deep and nonlinear scars" which was replaced with "underlying soft tissue damage." DC 7802 was amended to remove "superficial and nonlinear" and was replaced with "not associated with underlying soft tissue damage." Note (1) now provides that for purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) changed to a separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. DCs 7804 and 7805 were unaffected by the recent revisions. The Veteran's April 2013 VA examination showed a callus on the right foot, which measured three by three centimeters. Pursuant to the February 2020 remand directives, the Veteran was provided a VA examination in December 2020 in regard to this condition. See December 2020 Disability Benefits Questionnaire (DBQ). The examiner noted two calluses, one on the right heel, and the other on the right fifth toe, and determined that these calluses represent two painful scars. The right heel scar measured three by three centimeters; and the right fifth toe scar measured two by two centimeters. The examiner noted that the scars were not unstable. The Board finds that a 10 percent rating is warranted for the Veteran's two painful scars throughout the appeal period, pursuant to DC 7804. The Board has considered the former rating criteria for skin disorders prior to August 13, 2018; and both the former and new criteria since August 13, 2018. The Board finds that a higher rating is not warranted as the evidence shows no more than two scars, both on the foot, with measurements are no greater than three centimeters. See DC 7819, 7800 7805. REASONS FOR REMAND The Board finds the issue of whether an initial rating in excess of 10 percent disabling for right knee DJD must be remanded for further development. The February 2020 Board remand determined that the October 2019 VA examination was inadequate. The October 2019 examiner was directed to address any additional limitation of motion or functional impairment in terms of degrees, specifically the degree in which pain began. The October 2019 examiner found that pain and fatigue significantly limit functional ability with repeated use over a period time. However, the examiner failed to describe the additional limitations in terms of degrees simply stating that range of motion did not change with repeated motion, but pain increased, which is inadequate under Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Moreover, the examiner did not describe in terms of degrees at what point pain began. In light of this, in February 2020, the Board remanded this issue to obtain a new VA examination to address these inadequacies. A subsequent VA knee examination was provided in March 2020. At the March 2020 exam the examiner determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. However, the examiner did not address the contradictory finding at the October 2019 VA examination or estimate the limitation at that time due to pain, weakness, fatigability, or incoordination after repeated use. Therefore, the Board finds there has not been substantial compliance with the February 2020 remand directives in regard to the right knee. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, a VA examination, to include retrospective VA medical opinion regarding the October 2019 VA examination findings, is warranted. The matters are REMANDED for the following action: Afford the Veteran an appropriate VA examination to determine the nature and severity of his right knee disability. The record, to include a complete copy of this Remand, must be made available to the examiner, and all indicated tests should be conducted. If possible, such examination should be conducted during a flare-up of the affected joint. (a) The examiner should identify the current nature and severity of all manifestations of the Veteran's right knee disability. (b) The examiner should record the range of motion of the right knee observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c) The examiner is requested to review the October 2019 VA knee examination. The October 2019 VA examiner determined that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. The examiner is requested to offer a retrospective medical opinion as to the estimated limitation due to pain, weakness, fatigability, or incoordination at that time. (d) If the Veteran endorses experiencing flare-ups of his right knee, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. If the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (e) The examiner should indicate whether there is any evidence of recurrent subluxation or lateral instability of the right knee and, if so, assess the severity of this condition. He or she should also report whether the Veteran has symptomatic or removed semilunar cartilage and, if so, to describe the symptoms associated with such meniscal condition. (f) The examiner should describe the functional impairment associated with the Veteran's right knee disability on his daily life. All opinions expressed should be accompanied by a rationale. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.