Citation Nr: 1629805 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 10-20 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating higher than 30 percent for an Achilles tendon strain/tear with Achilles tendinitis, bursitis, and Haglund's deformity of the right foot. 2. Entitlement to an initial compensable rating for a post-operative scar. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from December 2000 to July 2005. This appeal to the Board of Veterans' Appeals (Board/BVA) is from May 2008 and February 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). As support for the claim for a higher rating for the Achilles tendon strain/tear with Achilles tendinitis, bursitis, and Haglund's deformity of the right foot, the Veteran testified at a videoconference hearing in June 2014 before the undersigned Veterans Law Judge (VLJ) of the Board. At the time, the rating for this disability was 10 percent. A transcript of the hearing is of record. In August 2014, the Board remanded this claim for further development - including especially obtaining all updated VA treatment records and, after receipt of these additional records, having the Veteran reexamined to reassess the severity of this right foot disability (notably, since undergoing surgery on this foot in June 2014). In a decision since issued in February 2015, on remand, the RO increased the rating for the right foot disability from 10 to 30 percent as of December 14, 2007, also assigned an even higher (and maximum possible, albeit temporary) 100 percent rating for this disability as of June 26, 2014 for convalescence following the right foot surgery, and reverted back to the 30 percent rating from October 1, 2014 onwards. As well, the RO granted service connection and an initial 0 percent (so noncompensable) rating for a post-operative scar effective October 1, 2014, and special monthly compensation (SMC) from June 26, 2014 to October 1, 2014 based on the need for regular aid and attendance (A&A) or on account of the Veteran being housebound (HB). The surgical scar is a separate and distinct manifestation of the service-connected right foot disability. See Esteban v. Brown, 6 Vet. App. 259 (1994). So in addition to determining whether a rating higher than even 30 percent is warranted for the right foot disability, the Board also will consider whether an initial compensable rating is warranted for the attendant post-operative scar. This derivative claim was not specifically certified to the Board, but the Board nonetheless will accept jurisdiction over it since part and parcel of the claim for greater compensation for impairment arising out of the same service-connected disability. See 38 U.S.C.A. § 7105(a) (West 2014); 38 C.F.R. § 20.200 (2015); see also 38 C.F.R. § 19.35 (stating that certification of issues on appeal by the agency of original jurisdiction (AOJ) is used for administrative purposes and neither confers nor deprives the Board of jurisdiction over appeals.). FINDINGS OF FACT 1. The Veteran's right foot disability most nearly approximates a severe right foot disability without flatfoot or an acquired claw foot. 2. His right foot Achilles tendon repair scar measures 4 centimeters (cm) x .5 cm and is painful; this single scar is not however unstable, associated with a burn, and has not resulted in any limitation of motion. CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 30 percent for the Achilles tendon strain/tear with Achilles tendinitis, bursitis, and Haglund's deformity of the right foot. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.71a, Diagnostic Codes 5276-5284 (2015). 2. But the criteria are met for a higher initial rating of 10 percent, though no greater, for the consequent right Achilles tendon repair scar. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran was provided this required notice in a January 2008 letter. Id; see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran with the development of facts pertinent to the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). To satisfy this additional obligation, VA has obtained all records of treatment reported by the Veteran, including of his VA and private treatment. He was also provided multiple VA examinations assessing and re-assessing the severity of his service-connected right foot disability, including in October 2014 on remand. In April 2016, his representative requested a new VA examination, alleging the service-connected disability had worsened since the October 2014 VA examination, but apparently mistakenly on the belief that that was the most recent examination. Review of the claims file, however, reveals the Veteran's service-connected disability was last examined by VA in June 2015, so more recently than thought, and there is no indication, either in the treatment records or statements from the Veteran, himself, that it has worsened since. The Board therefore finds that again remanding this claim for yet another VA examination is unnecessary and would only serve to inordinately delay a decision in this appeal. The Board is not obligated to remand a claim - especially here, again - merely because of the passage of time since an otherwise adequate VA examination, so not just as a simple matter of course. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Whether Higher Ratings are Warranted VA has adopted a Schedule for Rating Disabilities to evaluate the severity of service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Right Foot Achilles Tendon Strain/Tear Service connection for a retrocalcaneal heel spur of the right foot was awarded in a June 2006 rating decision with an initial 0 percent (i.e., noncompensable) evaluation assigned effective July 6, 2005. The May 2008 rating decision on appeal confirmed and continued that initial noncompensable rating. The service-connected condition was recharacterized as an Achilles tendon strain/tear with Achilles tendinitis, bursitis, and Haglund's deformity of the right foot in a February 2013 rating decision. Increased ratings were also assigned at that time with a 30 percent evaluation granted from December 14, 2007, a temporary total rating assigned from June 26, 2014 to September 30, 2014 for a surgery necessitating convalescence, and a 30 percent assigned from October 1, 2014. That represented a "staging" of the ratings for this disability, as Fenderson and Hart require. For the times when a 30 percent rating was assigned, no higher rating is warranted. The temporary total (i.e., temporary 100 percent) rating was the highest possible during the time assigned, so the Board need not consider the period when that maximum possible rating was in effect since no additional benefit to be had. For the times at issue, that is, when the Veteran had or has a 30 percent rating rather than the prior 10 percent rating or temporary 100 percent convalescent rating, the probative evidence of record, meaning the competent and credible medical and lay evidence, establishes that his right foot disability is productive of pain, swelling, and limited motion with symptoms exacerbated by activities such as walking and standing. A right Haglund's resection (exostectomy) was performed at the local VA Medical Center (VAMC) in June 2014 and he consequently is in receipt of a temporary total rating for the period of convalescence following surgery from June 26, 2014 to September 30, 2014. See 38 C.F.R. § 4.30. VA examinations performed throughout the claims period document his complaints of pain and limited function and the June 2015 VA examiner concluded the Veteran experienced a chronic compromise to weight-bearing and was unable to stand or walk for long periods of time. The Veteran's right foot Achilles tendon strain/tear is now rated as 30-percent disabling (rather than previously as 10-percent disabling) under 38 C.F.R. § 4.71a, Diagnostic Code 5284, pertaining to residuals of foot injuries. This is the maximum rating possible under this diagnostic code and is provided for foot injuries that most nearly approximate severe, as opposed to moderate or moderately severe. As the Veteran is in recepit of the maximum rating for a foot injury, a rating exceeding 30 percent accordingly is not warranted under this diagnostic code at any time during the claims period. Aside from considering whether greater compensation is warranted on a special extra-schedular basis for this disability under the provisions of 38 C.F.R. § 3.321(b)(1), the Board has considered whether a rating higher than 30 percent is appropriate under any of the other diagnostic codes for rating foot disabilities. Diagnostic Code 5276 pertaining to a flatfoot disability provides for a 50 percent evaluation for pronounced bilateral pes planus. 38 C.F.R. § 4.71a, Diagnostic Code 5276. However, the evidence does not establish, and the Veteran does not allege, that he has pes planus of either foot owing to his military service. None of the Veteran's VA or private treating physicians has identified the condition and it has never been diagnosed by any VA examiner. Similarly, a 50 percent evaluation is possible under Diagnostic Code 5278 for bilateral claw foot (pes cavus), acquired, but none of the evidence of record establishes that the service-connected right foot condition is inclusive of claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5278. The evidence also does not establish symptoms comparable to marked contraction of the plantar fascia with dropped forefoot, all toes hammertoes, very painful callosities, marked varus deformity, or any other indication of claw foot and a 50 percent evaluation. The Board has considered the Veteran's statements and testimony describing his pain and functional impairment, but finds there is no legal basis for assigning a rating higher than the currently assigned 30 percent evaluation as he is in receipt of the maximum possible schedular rating. His service-connected Achilles tendon strain/tear most nearly approximates a severe foot injury and the claim must be denied. Achilles Tendon Repair (Post-Operative) Scar As already alluded to, on remand service connection was granted for a consequent right Achilles tendon repair scar in a February 2015 rating decision following and as a direct result of the Veteran's June 2014 right foot Haglund's resection surgery. An initial 0 percent, so noncompensable, evaluation was assigned effective October 1, 2014. This post-operative scar is a separate and distinct manifestation of his service-connected right foot disability, according to the holding in Esteban, and the Board resultantly must consider whether a higher, meaning compensable, initial rating is warranted for this residual scar. Scars are rated under 38 C.F.R. § 4.118, for disorders of the skin in accordance Diagnostic Codes 7800-7805. In this case, an initial 10 percent evaluation is warranted for the Veteran's right foot scar under Diagnostic Code 7804 for one or two scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. The right foot scar measures 4 cm by .5 cm and the June 2015 VA examiner found that the scar was painful with sensitivity to the surrounding area. That said, there is no evidence that the scar is also unstable, i.e., has frequent loss of covering of the skin over it, and the most competent and credible (therefore most probative) evidence establishes that it is superficial, stable, and clearly not associated with any burns or underlying tissue damage. None of the Veteran's treating or examining physicians has identified any loss of function associated with the scar, including as an example loss of range of motion, and there is no indication it lacks normal mobility. An initial 10 percent rating, but not higher, is therefore appropriate for this scar throughout the claims period. Other Considerations In exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321. The U. S. Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, though, the Board finds that the rating criteria contemplate the Veteran's right foot disability and associated surgical scar. His disabilities have resulted in right foot pain with limitations to standing and walking and a painful scar; indeed, as already explained, his condition most nearly approximates a severe right foot injury and the maximum rating possible for foot injuries. The manifestations shown are contemplated in the rating criteria and the rating criteria, therefore, are adequate to evaluate the severity of his right foot disability and scar, including in terms of its consequent effects on his social and occupational functioning in his daily activities. As the right foot disability and scar are contemplated by the rating criteria, referral for consideration of an extraschedular rating is unwarranted. The record also does not demonstrate an exceptional circumstance where the evaluation of the condition fails to capture all of the symptoms of the service-connected disability. Id. The Veteran is already in receipt of a total disability rating due to individual employability resulting from service-connected disability (TDIU), and therefore, the Board need not address whether a claim for a TDIU has been raised explicitly or implicitly as part and parcel of the current increased-rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009) (finding that entitlement to a TDIU is an element of all claims for a higher rating.); see also Jackson v. Shinseki, 587 F.3d 1106 (2009). ORDER A rating higher than 30 percent for the Achilles tendon strain/tear with Achilles tendinitis, bursitis, and Haglund's deformity of the right foot is denied. However, a higher initial rating of 10 percent, though no greater, is granted for the consequent right Achilles tendon repair scar - subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs