Citation Nr: 1749038	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  11-26 518A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depression, dementia due to head trauma and polysubstance abuse, including as secondary to the service-connected bilateral foot disability.

2.  Entitlement to a compensable rating for callosities, bilateral feet.

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The Veteran served on active duty from August 1978 to September 1980.

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2010 and January 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  The September 2010 rating decision denied service connection for PTSD and depression, and continued a 0 percent rating for bilateral foot callosities.  The January 2011 rating decision continued a 0 percent rating for bilateral foot callosities and denied entitlement to a TDIU.  The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2013; a transcript of the hearing is of record.

In September 2014 and July 2016, the Board remanded these matters to the RO for further development.  After accomplishing the requested action to the extent possible, the RO continued the denial of the claims in the December 2014 and October 2016 supplemental statements of the case (SSOC)) and returned the matters to the Board for further appellate consideration.

The issues of entitlement to service connection for an acquired psychiatric disorder to include PTSD, depression, dementia due to head trauma and polysubstance abuse, and TDIU are REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDING OF FACT

Resolving doubt in favor of the Veteran objective findings show he has multiple callosities on both feet which are painful and unstable.  


CONCLUSIONS OF LAW

1.  The criteria for a separate 20 percent rating for left foot callosities throughout the appeals period are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.20, 4.118 Diagnostic Codes (Code), 7899-7819, 7804 (2016).

2.  The criteria for a separate 20 percent rating for right foot callosities throughout the appeals period are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.20, 4.118 Codes, 7899-7819, 7804 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required).  

Legal Criteria, Factual Background and Analysis

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

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 concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2.  

Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  See generally Hart v. Mansfield, 21 Vet. App. 505 (2007).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  

In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

The Veteran filed a claim for increase for his service-connected bilateral foot disability in February 2010.  His service-connected bilateral foot callosities are currently rated 0 percent under 38 C.F.R. § 4.118 (skin disorders), Codes 7899-7819 (benign skin neoplasms).  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 additional code is shown after the hyphen.  38 C.F.R. § 4.27.  The use of "99" denotes an unlisted disability (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99").  38 C.F.R. §§ 4.20, 4.27.  

Under Code 7819 benign skin neoplasms are to be rated as scars (Codes 7801-7805), or impairment of function.  38 C.F.R. § 4.118.

Under Code 7801, scars not of the head, face or neck that are deep and nonlinear and cover an area or areas of at least six square inches (39 square cm) but less than 12 square inches (77 square cm) warrant a 10 percent rating.  Higher ratings are warranted for scars covering larger areas.  38 C.F.R. § 4.118.

Under Code 7802, scars not of the head, face or neck that are superficial and nonlinear and cover an area or areas of 144 square inches (929 square cm) or greater warrant a 10 percent rating.  38 C.F.R. § 4.118.

Under Code 7804, the presence of one or two scars that are unstable or painful warrants a 10 percent disability rating.  Three or four scars that are unstable or painful warrant a 20 percent rating.  The presence of five or more scars that are unstable or painful warrant a 30 percent rating.  Note (1) explains that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Under Note (2), if one or more scars are both unstable and painful, 10 percent is to be added to the rating that is based on the total number of unstable or painful scars.  38 C.F.R. § 4.118.

In June 2009 the Veteran underwent a VA skin disease examination.  The Veteran reported that his feet and calluses hurt all the time.  He stated that every 2 to 3 months he trims some of the calluses with a razor blade and was seen at the podiatry clinic one to two times per year.  He wore padded inserts in some of his shoes.  The Veteran described the calluses on his feet as painful to touch.  There was no gait impairment observed and no abnormal wear pattern on his shoes.  The location of calluses on the right foot was at the medial great toe distal phalanx, medial aspect of the 2nd toe, dorsum of the 5th toe, plantar surface of the 5th metatarsal head and posterior heel.  The location of calluses on the left foot was at the medial aspect of the great toe, the 5th metatarsal head, the dorsum of the 5th toe and posterior heel.  The Veteran had been treated (trimming) for callosities of the feet in the past 12 months.  There was no scarring or disfigurement.  The diagnosis was callosities of the feet.  No functional impairment was noted.

In June and August 2009 and February 2010 the Veteran was seen at a VA podiatry clinic for follow-up treatment of paring keratosis (times 8).  The diagnoses were hallux valgus, hammertoes, tyloma/intractable plantar keratosis, bilaterally.

On May 2010 VA feet examination, the Veteran reported a history of chronic bilateral foot pain and recurrent foot calluses/intractable plantar keratoses.  He stated the pain was most severe in both heels and in the mid-sole.  He also reported having pain over both bunions, in the MTP [metatarsophalangeal] joints and in the small toes.  Aggravating factors were standing or walking for more than 4 to 5 hours, which was alleviated with rest, non-weight bearing activities and Motrin.  He received treatment from a VA podiatry department every three months for paring of keratoses.

There were no reported effects on employment.  The Veteran stated he had not worked since 2006 when he performed assembly work.  His daily activities are affected in that the chronic foot pain makes it harder for him to "get around."

On observation of both feet, the Veteran's shoes were relatively new with no abnormal wear pattern noted.  He ambulated with both forefeet abducted.  He had inserts bilaterally.  Examination of the right foot revealed no gait abnormality, painful motion, edema, instability, weakness and no scar.  There was tenderness over the bunion capsule, plantar and posterior heel, plantar fascia and over all the metatarsal heads.  There was evidence of abnormal weight-bearing due to multiple calluses.  On the hallux (great toe), there was a large callus on the lateral aspect and smaller callus on the posteromedial aspect of the toe.  On the 2nd toe, there was a large and painful corn on the lateral aspect, between the 2nd and 3rd toes.  On the 5th toe, there was corn on the dorsal aspect.  There was callus beneath the 3rd metatarsal head.  There was mild hammertoe deformities of the 2nd through 5th toes.  Hallux valgus on the 1st MTP angulation at 22 degrees and dorsiflexion at 20 degrees.  There was no pes cavus (claw foot), malunion or nonunion of the tarsal bones or muscle atrophy of the foot.  There was evidence of pes planus (flat foot) and pain on manipulation.  Angulation of the hindfoot, valgus was approximately 10 degrees.  There was no arch present on nonweightbearing or weight-bearing.  Abducted with ambulation was not correctable.  Regarding the right foot, there were no additional functional limitations, including no additional loss of range of motion, during flare-ups or secondary to repetitive use of the right foot, painful motion, weakness, excessive fatigability, or lack of endurance of incoordination.  X-rays of the right foot shows there continued to be nonprogressive pes planus.  Hallux valgus deformity at the 1st metatarsophalangeal joint was seen with minimal associated degenerative change of the 1st metatarsal head.  The joint space was normally preserved.  There were no other osseous or articular abnormalities.  The impression was stable findings hallux valgus deformity and pes planus.  

Examination of the left foot revealed no gait abnormality, painful motion, edema, instability, weakness and no scar.  There was tenderness over the bunion capsule, plantar and posterior heel, plantar fascia and over all the metatarsal heads.  There was evidence of abnormal weight-bearing due to multiple calluses.  On the great toe, there was a large callus on the lateral aspect.  On the lateral aspect of the 2nd toe was a painful large corn (between 2nd and 3rd toes); on the dorsal aspect there was hyperkeratosis; corn on the 5th toe; painful callus of the 5th metatarsal head and tick callus of the posterior heel and tyloma plantar heel.  

There was mild hammertoe deformities of the 2nd through 5th toes.  Hallux valgus on the 1st MTP angulation at 11 degrees and dorsiflexion at 20 degrees.  There was no pes cavus (claw foot), malunion or nonunion of the tarsal bones or muscle atrophy of the left foot.  There was evidence of pes planus (flat foot) and pain on manipulation.  Angulation of the hindfoot, valgus was 10 degrees.  There was no arch present on nonweightbearing or weight-bearing.  The Veteran stands and walks with foot turned outward (abducted) - not correctable with manipulation.  Regarding the left foot, there were no additional functional limitations, including no additional loss of range of motion, during flare-ups or secondary to repetitive use of the right foot, painful motion, weakness, excessive fatigability, or lack of endurance of incoordination.  X-rays of the left foot showed mild pes planus and hallux valgus deformity and 1st metatarsophalangeal joint with mild non-progressive degenerative changes of the metatarsal head.  The 1st metatarsophalangeal joint spaces were normally preserved.  Incidental finding of sclerotic density apparently within the distal tibia and distal fibula as well as ossification in the interosseous membrane and is unchanged from previous, but etiology is uncertain.  The impression was unchanged pes planus and hallux valgus.  

In June and September 2010 the Veteran was seen at a VA podiatry clinic for follow-up treatment of paring keratosis (times 8).  The diagnoses were hallux valgus, hammertoes, tyloma/intractable plantar keratosis, bilaterally.

On May 2013 VA skin diseases examination, the Veteran reported that prolonged standing was very painful due to calluses.  He stated that once any shaving is performed, he has a recurrence of calluses again.  He was last seen by VA podiatry in January 2013 and treatment consisted of trimming nails times 10, pairing keratosis times 8, and use of 40 percent urea cream.  On examination the Veteran's skin disorder was described as hyperkeratosis located on the right 2nd, 5th and 1st digits and on the left 5th and 1st digits; right 2nd and 1st metheads and left 4th an 1st metheads, and both heels.  The diagnosis was callosities.  The examiner noted that the physical impairment associated with the Veteran's service-connected disabilities will not preclude him form gainful employment if prolonged standing and walking was not an essential job function.  

X-rays of the right foot in December 2014 shows healing transverse fracture at the base of the 5th metatarsal, mild hallux valgus with 1st metatarsus varus deformity and mild degenerative changes of the 1st MTP joint, and pes planus.  Left foot x-rays show mild hallux valgus with 1st metatarsus varus and mild degenerative changes of the 1st MTP joint, and old fracture deformity of the distal fibula.  

In August and November 2013 the Veteran was seen at a VA podiatry clinic for follow-up treatment of paring keratosis (times 8).  The diagnoses were hallux valgus, hammertoes, tyloma/intractable plantar keratosis, bilaterally.

In April and October 2015 the Veteran was seen at a VA podiatry clinic for follow-up treatment of paring keratosis (times 8).  The diagnoses were hallux valgus, hammertoes, tyloma/intractable plantar keratosis, bilaterally.

In September 2016 the Veteran underwent a VA foot disorders examination.  His bilateral foot callosities at that time consisted of 4 tyloma of the toes, 1 tyloma over the posterior aspect of the heel, and 1 intractable plantar keratosis under the head of the 5th metatarsal of the right foot; and 2 tyloma of the toes 1 tyloma over the posterior aspect of the heel and 1 intractable plantar keratosis under the head of the 5th metatarsal of the left foot.  He reported having a burning pain in both feet associated with his callosities, which are there all the time whether he has shoes on or off, standing, walking, or just lying in bed.  He stated that he would get the callosities pared down by the podiatrist, but within a week the burning pain is back.  The pain increases with walking due to the rubbing of the calluses or bearing weight on the plantar calluses.  He does not have any orthotic shoes or inserts.  He stated that he tried inserts but they did not work.  He denied any infections or injuries.  He uses an over-the-counter cream.  He visits the podiatrist every 3 to 4 months.  He was given pads, but they were too bulky to fit with his shoes and they did not seem to help.

On examination, the Veteran had pain of both feet, which he described as a burning sensation at the sites of the callosities.  Flare-ups did not impact the function of his feet.  He reported functional impairment in that he has increased pain with standing and walking, which forces him to not stand or walk.  On evaluating flatfoot, he had pain on use of his feet.  There was no indication of swelling on use or characteristic callouses.  He had bilateral hammer toes.  He did not have symptoms due to a hallux valgus disorder, hallux rigidus, pes cavus, malunion or nonunion or tarsal or metatarsal bones, and no foot injuries and other conditions.  Physical examination revealed pain of the right foot associated with the callosities, but there was minimal objective evidence of pain on palpation of the callosities or with weight bearing and walking.  The Veteran's gait was normal, and it was not tender or painful anywhere else on the foot.  Physical examination of the left foot revealed there was pain associated with the callosities, but minimal objective evidence of pain on palpation of the callosities or with weightbearing and walking.  His gait was normal and not tender or painful anywhere else on the foot.  The diagnoses are bilateral flat foot, bilateral hammer toes, and bilateral hallux valgus.  There was no functional loss for either lower extremity attributable to the claimed bilateral foot disorder.  There was no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the feet were used repeatedly over a period of time.  The Veteran had no scars related to any foot conditions or treatment of any foot conditions.  The examiner noted that the Veteran's bilateral foot disability impacts his ability to perform occupational task (such as standing, walking, lifting, sitting, etc.).  The Veteran noted subjective callosity pain at rest, standing, and walking.  However, the examiner noted that at the examination there was no objective evidence that the callosity pain impeded function in any capacity.  

Regarding the impact on the Veteran's employability, the examiner opined that there was no clinical evidence during the examination that the Veteran's bilateral foot callosities or any of the other service-connected disabilities impact the Veteran's ability to obtain and maintain substantially gainful employment.  The rationale for the opinion was that the Veteran stands and walks unimpeded, he has full uninhibited ankle and foot range of motion and function bilaterally.  His overall care to date has been inconsistent and there is no doubt he would likely benefit greatly with persistent care management, appropriate foot wear and callus protection and judicial surgical intervention, however, he remains functional without the additional intervention.

Resolving doubt in favor of the Veteran, the Board finds that the medical and lay evidence reflect that his service-connected bilateral foot callosities disability warrants increases to 20 percent for each foot throughout the appeal period.  The Veteran's callosities have been analogized to scars under Code 7804.  The RO considered Code 7804 in rating these matters.  (See September 2011 statement of the case (SOC) and October 2016 supplemental SOC).  The Board finds that the level of severity of the Veteran's bilateral foot callosities did not significantly change during the course of his appeal.  The evidence shows consistent reports of bilateral foot pain associated with callosities and the Veteran had regular scheduled follow-up visits (as early as June 2009) to VA podiatry clinic for paring treatments for diagnosed bilateral tyloma/intractable plantar keratosis.  On September 2016 VA examination the Veteran had multiple tyloma/intractable plantar keratosis, and pain of both feet.  The Board finds that the Veteran's bilateral foot callosities most nearly approximate three or four scars that are unstable or painful.  Therefore his bilateral foot callosities warrants a 20 percent rating for each foot throughout the appeal period.  In this regard, the Veteran's claim is granted.  

As five or more scars (per foot) that are unstable or painful, severe pes planus, pes cavus, or severe foot injuries is not demonstrated, a rating higher than 20 percent for each foot is not warranted at any time.  Moreover, the Board has considered other diagnostic codes pertaining to scars, but given the size of the Veteran's bilateral foot callosities, Codes 7801 and 7802 are not applicable.

The Board has also considered Code 5276, which addresses flatfeet, because the 30 percent rating under this code contemplates bilateral foot callosities.  Notably, the Veteran has been diagnosed with pes planus (i.e., flat feet).  There is no indication, and the Veteran has not asserted, that pes planus is a service-connected condition or a progression of his bilateral foot callosities.  In light of this information, and given that the 30 percent rating under Code 5276 contemplates deformity, pain on manipulation and use accentuated, indication of swelling on use of the feet, the assignment of a 30 percent rating under Code 5276 for the Veteran's bilateral foot callosities is not appropriate.

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

A 20 percent rating is granted for left foot callosities throughout the appeal period, subject to controlling regulations governing the payment of monetary awards.

A 20 percent rating is granted for right foot callosities through the appeal period, subject to controlling regulations governing the payment of monetary awards.


REMAND

The Veteran asserts that his psychiatric disorder is secondary to his service-connected callosities of the feet.  In May 2013 the Veteran underwent a VA mental disorders examination.  His mental health history was recorded.  He had diagnoses of dementia due to head injuries an alcohol-induced persisting dementia, polysubstance dependence, depressive disorder and antisocial personality disorder.  The examiner did not provide a nexus opinion and rationale for the claimed acquired psychiatric disorders.  A July 2013 VA medical opinion of record does not fully encompass all pertinent aspects of the Veteran's psychiatric disorder.  It only addressed whether a preexisting psychiatric disorder (dementia) was clearly and unmistakably not aggravated beyond its natural progression by an inservice injury, event, or illness.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  Given the above, the Board concludes that remand is warranted in order to afford the Veteran with an adequate VA examination regarding his claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, dementia due to head trauma and polysubstance abuse.

The claim for TDIU is intertwined with the service connection claim being remanded.  A potential grant of service connection for the claim, and any statement made by the examiner on the impact of the disorder on employability, pursuant to the applicable examination worksheet, would affect adjudication of the TDIU issue.

Accordingly, the case is REMANDED for the following action:

1.  Furnish the Veteran a 38 C.F.R. § 3.159(b) notice letter addressing both claims, with inclusion of the provisions of 38 C.F.R. § 3.310 as to secondary service connection.  Allow a reasonable period of time for a response, and complete any needed follow-up action and development.

2.  The AOJ then should arrange for the Veteran to be examined by a psychiatrist or psychologist, to determine the nature and etiology of any psychiatric disability he may have (or have had since the filing of his claim in May 2010).  The Veteran's record must be reviewed by the examiner in conjunction with the examination.  All clinical findings must be reported in detail and correlated to a specific diagnosis.  Based on examination of the Veteran and review of his record, the examiner should: 

(a)  Identify whether the Veteran has a diagnosis of PTSD under the criteria in DSM-IV or V, and if so, whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the PTSD resulted from a stressor event in service.  The examiner should discuss the stressor(s) relied upon to support the diagnosis.

(b)  Identify (by diagnosis) each psychiatric disability found (other than PTSD) in accordance with DSM-IV or V.  In so doing, please reconcile the current findings with the diagnoses of dementia due to head injuries and alcohol-induced persisting dementia, polysubstance dependence, depressive disorder and antisocial personality disorder found in his VA treatment records/on prior examinations.

(c)  Identify the likely etiology for each psychiatric disability diagnosed; specifically, is it at least as likely as not (a 50 percent or greater probability) that such is related to (incurred in or aggravated by) the Veteran's active service or any head trauma disability identified on examination.  

(d)  Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's variously diagnosed psychiatric disorder was caused by or aggravated (permanently worsened) by his service-connected callosities of the feet?

For any psychiatric disability that is determined to not be related to active service, please identify the etiology considered more likely.

The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data as appropriate.

2.  The AOJ should then review the record and readjudicate the claims, with consideration of 38 C.F.R. § 3.310 in regard to the service connection claim.  If either remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board for further review.

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

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2015).




______________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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