Citation Nr: 22010572 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 17-56 131 DATE: February 24, 2022 ORDER For the entire initial rating period on appeal, from May 28, 2014, a higher initial disability rating of 20 percent, but no higher, for service-connected second metatarsal hyperkeratinization of the sole of the right foot (right foot disorder) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT During the entire initial rating period on appeal, from May 28, 2014, the service connected right foot disorder manifested as characteristic callosities that result in pain on manipulation and abduction of the right foot; such symptoms are alleviated by treatment with orthotics. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, from May 28, 2014, the criteria for a higher initial disability rating of 20 percent, but no higher, for the service connected right foot disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.10, 4.20, 4.21, 4.71a, Diagnostic Codes 5276-84, 4.118, Diagnostic Codes 7804-05. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from July 1977 to January 1983. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran testified at an October 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (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, 3.159, 3.326(a). As the instant decision remands the issue of service connection for an acquired psychiatric disorder, no further discussion of VA's duties to notify and assist is necessary as to that issue. Further, as the right foot disorder rating issue arises from the Veteran's disagreement with the initial rating assigned following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3). Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and provided the Veteran with adequate VA examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. 1. A Higher Initial Disability Rating of 20 Percent for Service-Connected Right Foot Disorder is Granted Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The Veteran had appealed from the initial rating assigned for the service connected right foot disorder. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the United States Court of Appeals for Veterans' Claims (Court) addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran's claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). By way of history, in a February 2015 rating decision the Agency of Original Jurisdiction (AOJ) granted service connection for second metatarsal hyperkeratinization of the sole of the right foot, and assigned an initial noncompensable (0 percent) disability rating under Diagnostic Code 7824. Subsequently, in a September 2017 rating decision, the AOJ granted a higher initial disability rating of 10 percent for the right foot disorder under Diagnostic Code 7804 due to a painful lesion being caused by the service-connected right foot disorder. The relevant evidence is as follows. A VA skin examination was performed in February 2015. Upon examination the Veteran was found to have a painful callus under the right second metatarsal. The callus was approximately one centimeter in diameter and was tender to palpation. It was noted that the Veteran or his spouse would periodically shave down the callus. The Veteran conveyed having difficulty walking when the callus would harden up. Medication was not used to treat the foot/callus. The Veteran testified at an August 2017 Decision Review Officer (DRO) hearing. At that time, the Veteran testified that the pain in the right foot would prevent walking more than two city blocks. The Veteran also testified to walking on the side of the right foot because of the painful callus. Further, the Veteran testified to being treated with orthotics. The Board notes that a January 2015 VA treatment record specifically noted that the right foot pain affected the Veteran's walking. A new VA examination was performed in September 2017. Again, the VA examiner found that the Veteran had a painful callus under the right second metatarsal that was one centimeter in diameter and tender. The Veteran was still shaving the callus every few days to treat the pain. No medications were being taken to treat the disability; however, the Veteran was using orthotic shoe inserts. The VA examiner explicitly noted that the orthotics have alleviated the majority of the Veteran's discomfort. Per a subsequent September 2017 VA treatment record, the Veteran sought treatment for a painful lesion of the plantar right foot. It was noted that the Veteran had extra depth shoes and orthotics, which have alleviated the majority of the discomfort. The Veteran also testified at an October 2021 virtual Board hearing. At that time the Veteran testified to regularly receiving treatment at a VA medical center (VAMC) to have the right foot callus shaved. This is supported by the VAMC records in the Veteran's file. The Veteran testified that the callus causes pain and numbness, and that he is prescribed orthotics to assist with the altered gait caused by the symptoms. Per the Veteran, when the callus grows too large it causes him to have to walk on a tilted foot. At the outset, the Board will address whether a higher initial disability rating may be granted under any of the skin/scar disability rating criteria of 38 C.F.R. § 4.118. The Board notes that, effective August 13, 2018, during the course of the appeal, the criteria for rating skin/scar disabilities were revised. See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018). The service-connected right foot disability has been rated under Diagnostic Code 7804. Under both the old and new rating criteria, one or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Per the evidence discussed above, the Veteran has a single painful callus under the right second metatarsal. Nothing in the evidence of record indicates that the callus is unstable. As there is only a single painful callus that is not unstable, an initial disability rating in excess of 10 percent under Diagnostic Code 7804 is not warranted. Id. As discussed above, the right foot disability was originally rated under Diagnostic Code 7824. Under the old rating criteria, a disability rating in excess of 10 percent would only be warranted if the Veteran underwent systemic treatment for the callus. As discussed above, the Veteran does not take any medications to treat the callus, and instead has the callus shaved and wears orthotics; therefore, a higher initial rating under the pre-August 13, 2018 rating criteria is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7824 (2018). Under the post-August 13, 2018 rating criteria, disabilities coded under Diagnostic Code 7824 are to be rated pursuant to the General Rating Formula for the Skin. Under the General Rating Formula, an initial disability rating in excess of 10 percent would only be warranted if the Veteran underwent systemic therapy or the Veteran had characteristic lessons involving 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas affected. 38 C.F.R. § 4.118, Diagnostic Code 7824 (2022). As discussed above, the Veteran has not undergone systemic therapy to treat the right foot callus. Further, two VA examiners have found the callus to be one centimeter in diameter, which is significantly less than 20 percent of the entire body or the exposed areas affected. For these reasons, a higher initial disability rating under Diagnostic Code 7824 is not warranted under either the old or new rating criteria. 38 C.F.R. § 4.118, Diagnostic Code 7824 (2018 & 2022). Turning to the other scar rating criteria, as the evidence does not show that the callus is deep/causes underlying soft tissue damage, an increased rating is not warranted under Diagnostic Code 7801, under either the old or new rating criteria. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2018 & 2022). Further, as a 10 percent rating is the maximum rating under Diagnostic Code 7802, under both the old and new rating criteria, a higher initial rating is not warranted under that diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2018 & 2022). Significantly, pursuant to Diagnostic Code 7805, under both the old and new rating criteria, the Board may evaluate any disabling effects not considered in a rating provided under Diagnostic Codes 7801 through 7804 under another appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2018 & 2022). As such, the Board has also considered whether a higher initial disability rating may be warranted under the foot disability rating criteria of 38 C.F.R. § 4.71a. During the pendency of this appeal, various portions of 38 C.F.R. § 4.71a were amended, effective February 7, 2021. Significantly, the amendments do not alter the foot rating criteria beyond adding a new diagnostic code for plantar fasciitis. 38 C.F.R. § 4.71a, Diagnostic Code 5296 (2022). As the evidence does not support that the service connected right foot disorder results in plantar fasciitis, a higher initial disability rating under new Diagnostic Code 5269 is not warranted. Id. As 10 percent is the maximum disability rating under Diagnostic Codes 5277, 5279, 5280, 5281, and 5282, a higher initial disability rating is not warranted under those diagnosis codes. Further, as the evidence does not reflect that the Veteran has symptoms consistent with claw foot/pes cavus or malunion or nonunion of the tarsal or metatarsal bones, a higher initial disability rating under Diagnostic Codes 5278 and/or 5283 is not warranted. 38 C.F.R. § 4.71a. Diagnostic Code 5276 provides for a 20 percent disability rating for unilateral severe flatfoot (pes planus) characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, while a 30 percent disability rating is warranted for pronounced flatfoot (pes planus) characterized by symptoms of marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, which are not improved by orthopedic shoes or appliances. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. As discussed above, throughout the entire initial rating period on appeal, the VA medical records, VA foot examinations, and the Veteran's lay statements support that the Veteran has experienced characteristic callosities that result in pain on manipulation. Further, the evidence also supports that the painful callus under the right second metatarsal results in abduction of the right foot and requires treatment with orthotics and regular shaving of the callus. Such findings support the grant of a higher initial disability rating of 20 percent for the service-connected right foot disorder by analogy under Diagnostic Code 5276. For these reasons, resolving all reasonable doubt in favor of the Veteran, the Board finds that the lay and medical evidence shows that a higher initial disability rating of 20 percent is warranted for the service connected right foot disorder for the entire initial rating period from May 28, 2014, by analogy under Diagnostic Code 5276. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5276. The Board has considered whether a higher rating could be assigned under Diagnostic Code 5267; however, as the evidence shows that the Veteran's symptoms are relieved by orthotics, a 30 percent rating, the maximum schedular rating under Diagnostic Code 5276 for a unilateral foot disability, is not warranted. Further, the Board has considered whether a higher initial disability rating in excess of 20 percent could be assigned under Diagnostic Code 5284 based on a right foot injury; however, as the right foot responds well to treatment, the Board does not find that the Veteran's right foot symptoms, discussed above, are "severe" as contemplated by Diagnostic Code 5284, to warrant the grant of an initial 30 percent disability rating under Diagnostic Code 5284. 38 C.F.R. § 4.71a. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the initial rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). REASONS FOR REMAND 2. Service Connection for an Acquired Psychiatric Disorder is Remanded VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. Service treatment records do not reflect that the Veteran was diagnosed with any acquired psychiatric disorder at service entrance. It is the Veteran's contention that one or more currently diagnosed acquired psychiatric disorders preexisted service and were subsequently aggravated by active service. Specifically, at the August 2017 DRO hearing, the Veteran testified to having worsening mental health symptoms upon returning to the United States after being stationed in Germany. Further, the Veteran's spouse testified to noticing a decline in the Veteran's mental health during this period of service. Review of the service treatment records does not reflect diagnosis of, or treatment for, any mental health symptoms during service; however, service personnel records reflect that the Veteran was barred from reenlisting following a positive drug test in July 1982. At the August 2017 DRO hearing, the Veteran testified that the increase in mental health disability symptoms following the return to the United States is what prompted the Veteran's drug use during service. Further, the Board notes that the personnel records reflect that the Veteran's security clearance was suspended in September 1981. It is unclear why this occurred. To date, the Veteran has not received a VA mental health examination. Considering the evidence in the service personnel records that the Veteran argues shows mental health symptoms during service, and considering the question of whether the Veteran had any preexisting mental health disabilities that were worsened during service, the Board finds remand to obtain a VA mental health examination to be warranted. The issue of service connection for an acquired psychiatric disorder is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning mental health treatment. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of any mental health disorder, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's mental health, not already of record, for the period from January 2019. 3. Schedule the appropriate VA examination. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinions: A) The VA examiner should first identify all currently diagnosed acquired psychiatric disorders. The Board notes that during the course of this appeal the Veteran has been diagnosed with multiple acquired psychiatric disorders, to include PTSD, bipolar disorder, panic disorder, depressive disorder, and a mood disorder. B) For each diagnosed acquired psychiatric disorder, opine as to whether the disorder "clearly and unmistakably" (obviously or manifestly) existed prior to the Veteran's entry into active duty in July 1977. C) For each acquired psychiatric disorder that "clearly and unmistakably" existed prior to service, was the preexisting acquired psychiatric disorder "clearly and unmistakably" (obviously or manifestly) not aggravated by service? In this special context, "aggravation" has occurred where there is an increase in disability beyond the natural progress of the disability. In rendering this opinion, the VA examiner should address the Veteran's failed drug test during service, the Veteran's loss of security clearance, and the lay testimony from the Veteran and spouse at the August 2017 DRO hearing indicating that the Veteran's mental health symptoms may have worsened in severity after the Veteran returned from being stationed in Germany. D) For each acquired psychiatric disorder in which the answer to either of the above questions is no, opine as to whether it is "at least as likely as not" (50 percent or greater probability) that the acquired psychiatric disorder first manifested during service. In rendering this opinion, the VA examiner should address the Veteran's in-service drug use, loss of security clearance, and the lay statements indicating that the Veteran may have manifested worsening mental health symptoms during service after returning from being stationed in Germany. E) If the Veteran is found to have a current diagnosis of PTSD, the VA examiner should attempt to elicit any purported in-service stressors from the Veteran. If any in-service stressors sufficient to support a diagnosis of PTSD are identified, the VA examiner should opine as to whether it is at least as likely as not (50 percent or higher degree of probability) that the current PTSD symptoms are due to the purported in-service stressor. 4. Then, readjudicate the issue of service connection for an acquired psychiatric disorder. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.