Citation Nr: 1736686	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-02 991	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to service connection for a cervical spine disability.

2. Entitlement to an initial compensable rating for a callus of the right fifth toe.

3. Entitlement to an initial compensable rating for fungal infection of the feet.

4. Entitlement to a 10 percent disability evaluation for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. G. Perkins, Associate Counsel
INTRODUCTION

The Veteran served on active duty from March 2003 to September 2007 with additional service with the Army Reserves from September 2007 to November 2008. 

These matters are before the Board of Veterans' Appeals (Board) on appeal of a January 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

These matters were previously before the Board in March 2012 and May 2016, and remanded for further development.

The issue of entitlement to service connection for a cervical spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. At no point during the period on appeal did the Veteran's callus of the right 5th toe  manifest at least 5 percent of the total body or the exposed area of the body, and the Veteran was not prescribed intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs.  

2. At no point during the period on appeal did the Veteran's service-connected fungal infection of the feet manifest at least 5 percent of the total body or the exposed area of the body, and the Veteran was not prescribed intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs.  

3. A compensable rating has been assigned for a service-connected disability and there is no longer a basis for the assignment of a 10 percent evaluation based upon multiple, noncompensable service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for a compensable evaluation for a tender callus of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.71a, 4.118, Diagnostic Code 7899-7813 (2016).

2. The criteria for a compensable evaluation for tinea pedis of both feet (claimed as fungal infection) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.71a, 4.118, Diagnostic Code 7813 (2016).

3. Entitlement to a 10 percent evaluation based upon multiple, noncompensable service-connected disabilities is denied as a matter of law. 38 C.F.R. § 3.324  (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties To Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  Increased Rating

A.  Legal Criteria

Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

B.  Right Foot Callus

The Veteran contends that the callus on his right foot is worse than initially rated. 

The Veteran's service-connected disability is currently rated by analogy to diagnostic code (DC) 7813 because there is no specific diagnostic code pertaining to a callus condition. 38 C.F.R. § 4.20. Under DC 7813, dermatophytosis is to be rated as disfigurement of the head, face or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending on the predominant disability. See 38 C.F.R. § 4.118, DC 7813. The Veteran's disability does not result in any disfigurement or scars. Therefore, the Board finds that the Veteran should be evaluated under DC 7806. 

Under DC 7806, a noncompensable rating is assigned with less than 5 percent of the entire body affected; or, less than 5 percent of exposed areas affected; and, no more than topical therapy required during the past 12-month period.  A rating of 10 percent is assigned with at least 5 percent, but less than 20 percent, of the entire body affected; or, at least 5 percent, but less than 20 percent, of the exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. 

The Veteran was afforded a VA examination in October 2007. The Veteran reported to the examiner that since he started the military, his little toe on the right foot is twisting under his other toe and causing a painful callous at the bottom of the little toe that he needs to "scrape off every once in a while." During the examination, the examiner noted that the Veteran's right little toe was curled under and it hurts when he is walking. The Veteran cuts the callus off weekly and then has pain that limits his ability to walk. The examiner diagnosed the Veteran's foot condition as: tender callous of the right little toe and associated right little toe pain. The examiner opined that the Veteran's foot condition did not have a significant effect upon the Veteran's occupation or daily activities. The examiner noted that the Veteran's foot condition was not related to neoplasm, or trauma to the feet. Additionally, there is no evidence of painful motion, swelling, weakness or abnormal weight bearing on the left foot, but the examiner found tenderness and abnormal weight bearing on the right extremity to include an unusual shoe pattern or callosities. There was no Morton's neuroma or metatarsalgia, hammer toe, hallux valgus or rigidus, clawfoot, malunion or nonunion of metatarsal bones, or scars. The VA examiner noted that the Veteran does not have any significant bony or articular abnormality, and that no significant abnormality was identified.

Pursuant to the Board's March 2012 remand, the Veteran was afforded a VA examination in February 2014. The Veteran reported to the examiner that during boot camp, his right toes began to hurt right after he started wearing boots. The Veteran obtained larger boots, but the pain remained. The pain eventually subsided, but the Veteran now has a callus on his 5th right toe. The Veteran reports that if the callus gets too big he cuts it off. The Veteran said, that "it is like his toe is sideways now." The Veteran also reported that he has to cut it off once a month, and "it hurts for a while" after cutting it off. Other than those periods, the callus is not painful. The Veteran was diagnosed with Callus right little toe. 

On physical examination, the VA examiner did not find Morton's neuroma or metatarsalgia, hammer toe, hallux valgus or rigidus, clawfoot, malunion or nonunion of metatarsal bones, or scars. The VA examiner noted that the Veteran's callus was nontender and had a linear measurement of 1cm x 0.1cm on the pad of the right little toe, and another small tiny callus measured at 0.5 x 0.1 on the pad of the left little toe. The VA examiner opined that the callus is an "extremely small percentage of his entire body way under 1%. Veteran does not require systemic treatment for the callus. Veteran does not have a permanent boney deformity of the toe."

After reviewing the evidence, the Board finds that the Veteran is not entitled to compensable rating. As noted above, a rating of 10 percent is assigned with at least 5 percent, but less than 20 percent, of the entire body affected; or, at least 5 percent, but less than 20 percent, of the exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period.  The February 2014 VA examiner noted that the total and exposed body area affected by the Veterans callus is less than 1 percent of the entire body. The February 2014 VA examiner also noted that the Veteran had not received any treatment with oral or topical medications in the past 12 months. Because the Veteran's disability does not require intermittent systemic therapy and affects less than 5 percent of his exposed and total body area, the Board finds that a compensable rating is not warranted.

C.  Fungal Infection on Feet

The Veteran contends that the fungal infection on both of his feet is worse than initially rated.

The Veteran's service-connected disability was previously rated by analogy to DC 7820 (infections of the skin not listed elsewhere) because the Veteran's fungal condition was not given a specific diagnosis. 38 C.F.R. § 4.20. However, in November 2016, the Veteran's fungal infection of his feet was diagnosed as tinea pedis. As a result, the Veteran's diagnostic code was changed to DC 7813, which more accurately rates the Veteran's fungal infection condition.

The rating criteria of DC 7813 take into consideration the conditions of dermatophytosis, specifically tinea pedis of the feet. This condition is to be rated as disfigurement of the head, face or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending on the predominant disability. See 38 C.F.R. § 4.118, DC 7813.  The Veteran's disability does not result in any disfigurement or scars. Therefore, the Board finds that the Veteran should be evaluated under DC 7806. 

Under DC 7806, a 10 percent rating would be assigned with at least 5 percent, but less than 20 percent, of the entire body affected; or, at least 5 percent, but less than 20 percent, of the exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. 

The Veteran was afforded a VA examination in October 2007. The Veteran reported to the examiner that that he has been having problems with a fungal infection of his great toe and little toe of his right and the little toe of his left foot. The Veteran further reports that he has tried every treatment he can find but nothing has worked. The examiner noted that there was no scarring related to the fungal infection.

Pursuant to the Board's May 2016 remand, the Veteran was afforded a VA examination in November 2016. The Veteran reported to the examiner that he was examined a few times at a VA medical center for a fungal infection, but the examiner was unable to locate those records. The Veteran did not provide any dates of treatment and cultures were not taken. The examiner noted that the Veteran did not have scarring related to the fungal infection. The Veteran used over the counter Lamisil to treat the infection. On examination, the examiner described the Veteran's right great toe nail as thickened and deformed; although swollen there was no drainage. The examiner also noted that the Veteran's right little toe nail was also deformed. No debilitating episodes related to his fungal infection over the previous twelve months were reported by the Veteran. 

The examiner provided a more specific diagnosis of tinea pedis. The infection did not involve any neoplasm, metastases, acne or chloracne, vitiligo, scarring alopecia, alopecia areata or hyperhidrosis. The examiner opined that the tinea pedis fungal infection involved less than 5 percent total body area and that the exposure did not involve his hands, neck or face. The examiner opined that the Veteran's tinea pedis had minimal impact on his ability to work.

After reviewing the evidence, the Board finds that the Veteran is not entitled to compensable rating. The November 2016 VA examiner noted that the total and exposed body area affected by the Veteran's tinea pedis is less than 5 percent.  The VA examiner also noted that although the Veteran used over the counter topical medication for six weeks or more, he had not received any systemic treatment with oral medications or topical corticosteroids in the previous 12 months.  Because the Veteran's disability does not require intermittent systemic therapy and his tinea pedis condition affects less than 5 percent of his exposed and total body area, the Board finds that a compensable rating is not warranted.

III.  Entitlement to a 10 Percent Rating Under 38 C.F.R. § 3.324
 
A veteran with two or more separate, permanent, service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Rating Schedule, shall be awarded a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. 

In the Board's May 2016 decision, service-connection was granted for  thoracolumbar spine and residuals of healed fracture of the right tibia and fibula disabilities. Subsequent to the Board's decision, the RO granted 10 percent ratings for each disability in a May 2016 rating decision effective the date of the claim. Therefore, the Veteran may not be awarded a separate 10 percent disability evaluation for multiple noncompensable disabilities pursuant to 38 C.F.R. § 3.324 . This claim is rendered moot by the awards provided and the appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994).

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See 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)




ORDER

Entitlement to a compensable initial evaluation for a callus of the right fifth toe is denied.

Entitlement to a compensable initial evaluation for tinea pedis of the feet (claimed as a fungal infection) is denied.

The claim for a 10 percent evaluation based on multiple noncompensable service-connected disabilities is denied.


REMAND

Further development of the record is required to comply with VA's duty to assist the Veteran in the development of the claim of service connection for a neck disability.  

Service treatment records from the Veteran's active duty service include November 2004 complaints of neck pain after being involved in a motor vehicle accident. The assessment following that treatment is illegible.  

After separation from active duty in September 2007, the Veteran reported for Reserve duty. 

He was afforded a VA examination in October 2007 during which he complained of intermittent neck pain in the back of his neck on the right side. He also experienced pain if he turned his head a certain way or when he took off his Kevlar (body armor). The Veteran reported that his neck pain bothered him a couple of times a week. He described the pain as sharp and makes him nauseated. He also reported that his neck gets hot during flare-ups but it subsides after some time. The Veteran also reported that during flare-ups he has to sit still until the pain goes away. Following the examination, the VA examiner opined that there was "no orthopedic condition found of the cervical spine." However, the examiner did not address whether any non-orthopedic conditions exist that address the symptoms the Veteran is reporting. 

The Board finds it significant that the Veteran was treated for neck complaints during service and had neck complaints on VA examination one month after separation, despite the fact that there was no diagnosis offered. The most recent Board remand included instructions to take all appropriate action to obtain all medical records pertaining to the Veteran's reserve service because those records may include additional references to neck complaints.  

It is unclear whether all Reserve medical records have been obtained. There are multiple requests and responses, but it appears they refer to active duty records only; only active duty dates are included. See VBMS entry dated October 2016. 

On remand, all efforts should be undertaken to determine that all medical records related to the Veteran's Reserve duty have been obtained. Then, the Veteran should be afforded a VA examination to determine the current nature and likely etiology of his neck complaints. Since the October 2007 rating decision, service connection was granted for a low back disability. Thus, the examination on remand should include an opinion as to whether any currently diagnosed neck disability is caused or aggravated by the now service-connected back disability.  

Accordingly, the case is REMANDED for the following action:

1. Take all appropriate action to obtain complete medical records related to the Veteran's Reserve service from September 2007 to November 2008.

2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any neck disability. The claims file and copies of all pertinent records should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. Based on the examination and review of the record, the examiner should address the following:

(a) Please identify all current disorders related to the Veteran's cervical spine condition.

(b) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed cervical spine disorder, had its onset in or is etiologically related to the Veteran's active duty service? In answering that question, the examiner should consider the November 2004 motor vehicle accident and the Veteran's complaint of neck pain on the October 2007 VA examination, one month after separation from active duty. 

(c) Is it at least as likely as not (i.e., probability of 50 percent or greater) that any cervical spine disability was caused by or aggravated by the Veteran's service-connected thoracolumbar spine disability?

The examiner is informed that aggravation here is defined as any increase in disability.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation.

Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

3. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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