BVA9502970 DOCKET NO. 93-08 116 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to a compensable evaluation for a post-operative scar of the right foot. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Prichard, Associate Counsel INTRODUCTION The veteran had active service from May 1984 to February 1990, with evidence of additional prior active service of two months and 27 days. Although the issue of whether the denial by the regional office of entitlement to service connection for yeast infections, vaginitis, cystitis, and a "possible prominent right ovary" was clearly and unmistakably erroneous has been certified to be in appellate status, this matter has not been the subject of a notice of disagreement by the veteran. Accordingly, the Board has no jurisdiction over this issue. 38 U.S.C.A. § 7105 (a) The issues of entitlement to a rating in excess of 10 percent for post-operative left knee lateral subluxation and relaxation, left collateral ligament, and to a compensable rating for minute avulsion fracture, left navicular bone, were the subject of a claim dated August 10, 1992. These matters were adjudicated and denied by the regional office on November 4, 1992, but the veteran was not notified of these determinations until these matters were referred to in a supplemental statement of the case apparently mailed to the veteran on December 17, 1992. In fact, it does not appear that the veteran was ever formally notified of the full extent of the rating decision of November 4, 1992. The veteran did refer to these matters on a VA Form 1-9, dated November 9, 1992, which was received at the regional office on November 12, 1992. This document cannot be construed as a notice of disagreement because the veteran had not been notified that the matters had been denied. Accordingly, even though these issues have been certified for appeal by the regional office, the Board has no jurisdiction over these matters in the absence of a notice of disagreement. 38 U.S.C.A. § 7105 (a) For essentially the same reasons that are set forth in the preceding paragraph, the matters of entitlement to service connection for irritable bowel syndrome and a "breast lump" are not in appellate status. Irritable bowel syndrome, for instance, was not even mentioned on the VA Form 1-9 of November 9, 1992. It is true that the veteran did then raise the matter of having had a lump in her breast during service, but this was not a notice of disagreement but rather a request to have the matter "checked out." The veteran also stated on the Form 1-9 that she would like to have "Diabetes ruled out." It does not appear that this question has been addressed by the regional office. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the evaluation for the post-operative scar of the right foot should not have been reduced. She states that she continues to experience extreme pain, which occasionally prevents her from getting out of bed. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim to a restoration of a compensable evaluation for her right foot disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. The post-operative scar of the right foot for granuloma annular is not poorly nourished, tender or painful and does not give rise to moderate foot disability. CONCLUSION OF LAW The criteria for a compensable evaluation for a post-operative scar of the right foot for granuloma annular have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.71a, 4.118, Code 5284, 7804, 7805 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that there has not been any improvement in her right foot disability, and that the 10 percent evaluation previously in effect for this disability should be restored. As noted above, the evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. The entire history of the veteran's disability is considered during the evaluation. The veteran was initially service connected for "post operative tender scar right foot for granuloma annular with a history of left foot involvement, resolved" in a January 1991 rating decision. The evidence considered in this decision included the veteran's service medical records, and the findings of a September 1990 VA examination. At the September 1990 VA examination, the veteran related that in 1987 she had developed some lumpy material on the second, third, and fourth toes of the right foot, with some swelling. She had undergone surgery by a podiatrist, with removal of what was described as "fibro fatty" material, possibly a neuroma. The pathologic diagnosis was a noncaseating granuloma. She reported that the fibrofatty material was removed from the ball of the foot under the first and second metatarsal areas, and that she had complaints of pain in the foot with swelling when she was on her feet for a period of time. She reported that she still had nodules on the dorsal area of the foot, and the second, third, and fourth toe areas. On examination, the veteran had a 2 1/2 inch scar that was barely visible on the dorsal aspect of the right foot descending down to the distal aspect of the second toe. She complained of tenderness when palpating the scar. There was also a scar which connected the webbed space of the first and second toe at the sole. The sole of the foot had a 1 1/4 inch scar between the second and third toe areas on the ball of the foot. The scars were all tender to touch, but the examiner was unable to feel the induration. The scars were barely visible, and the examiner could not detect the fibro fatty nodules that the veteran pointed out. The diagnosis was the residuals of right foot surgery for removal of noncaseating granuloma material, diagnosis uncertain, with residual pain, and a former diagnosis of subcutaneous granuloma annulare was noted. An X-ray study of the right foot conducted at this time demonstrated no osseous abnormalities. The January 1991 rating decision assigned a 10 percent evaluation for the veteran's disability on the basis of the evidence then of record. She was afforded another VA examination in January 1992. In February 1992, the regional office issued a proposal to reduce the evaluation of the veteran's disability to a noncompensable rating. She was informed of this proposal in a March 1992 letter. A June 1992 rating decision decreased the evaluation for the veteran's right foot disability to a noncompensable basis, effective September 1, 1992. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. The foregoing provisions apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examinations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344. A scar of the right foot which is superficial, tender, and painful on objective demonstration or which is superficial, poorly nourished, with repeated ulceration may receive a 10 percent evaluation. 38 C.F.R. § 4.118, Codes 7803, 7804. If the schedule does not provide a zero percent evaluation for a disability, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. A moderate foot injury is evaluated as 10 percent disabling. 38 C.F.R. § 4.71a, Code 5284. A zero percent evaluation is assigned for a disability which is less than moderate. 38 C.F.R. § 4.31. The veteran's scar of the right foot may also be evaluated on the basis of limitation of function of the part affected. 38 C.F.R. § 4.118, Code 7805. The June 1992 rating decision which reduced the evaluation for the veteran's disability was based on the findings of a January 1992 VA examination. She was noted to have a history of excision of a granuloma from the plantar surface of the right foot. The scar had remained painful on walking. On examination, the veteran walked with a normal gait, free of any limp. There was a well healed longitudinal scar between the heads of the second and third metatarsals. The scar measured 1.8 centimeters in length and less than 1 millimeter in width. The scar was soft, non- adherent, and even with the surface. There was no inflammation or ulceration present. She had a full range of motion in her toes, and was able to toe and heel walk equally, as well as walk in tandem without difficulty. She was able to walk with her feet pronated and supernated. The impression was of a scar of the plantar surface of the right foot with subjective complaints of pain and tenderness. After thorough review of the veteran's contentions and the evidence of record, the Board is unable to find that a10 percent evaluation is merited for the veteran's right foot disability. The evaluation had not been in effect for 5 years, and the evidence does not show that the disability had stabilized. The September 1990 VA examination on which the 10 percent evaluation was based demonstrated that the veteran complained of tenderness on palpation of the scars resulting from her foot surgery. The scars were all described as tender to the touch. The January 1992 VA examination demonstrated that the veteran was able to heel and toe walk, and to walk with her feet pronated and supernated. There was no objective demonstration of tenderness and pain, and the impression was of only subjective complaints of pain and tenderness. Under 38 C.F.R. § 4.40, pain may be compensable if it is supported by adequate pathology and evidenced by the visible behavior of the claimant. In view of the essentially benign findings, the complaints of pain do not warrant a compensable rating. In addition, the evidence does not demonstrate moderate disability of the foot, as the veteran was able to walk with a normal gait, retained a full range of motion of her toes, and was able to perform all walking test requested of her. Therefore, a 10 percent rating cannot be granted. 38 C.F.R. §§ 4.71a, 4.118, Codes 5284, 7805. In reaching this decision, the Board has considered an extraschedular evaluation under 38 C.F.R. § 3.321, but an unusual disability picture has not been shown. The veteran's symptomatology does not more nearly approximate that of the next higher evaluation. 38 C.F.R. § 4.7. ORDER Entitlement to a compensable evaluation for a post-operative scar of the right foot, for granuloma annular, is denied. JOHN E. ORMOND Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.