Citation Nr: 0814461 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-16 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right foot calluses. 2. Entitlement to an initial rating in excess of 10 percent for left foot calluses. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The appellant is a veteran who appeared to have served on active duty from July 10, 1953 to September 14, 1956, from September 26, 1956 to June 10, 1974, and from June 11, 1974 to November 30, 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Waco Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for right and left foot calluses and assigned separate 10 percent ratings and declined to reopen the claim seeking service connection for lichen planus. In August 2005, the veteran testified at a Decision Review Officer hearing; a transcript of that hearing is of record. In June 2007, the Board found that new and material evidence had not been received to reopen the claim for service connection of lichen planus and remanded the issues seeking an increased rating for right and left foot calluses. FINDINGS OF FACT 1. Calluses of the right foot are manifested in a very small area, without limitation of function or motion of any affected joint, or any other impairment; the veteran does not have a moderately severe right foot disability. 2. Calluses of the left foot are manifested in a very small area, without limitation of function or motion of any affected joint, or any other impairment; the veteran does not have a moderately severe left foot disability. CONCLUSIONS OF LAW 1. The schedular criteria for an initial disability rating in excess of 10 percent for right foot calluses have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.72, Diagnostic Codes (Codes) 7801, 7802, 7803, 7804, 5284 (2007). 2. The schedular criteria for an initial disability rating in excess of 10 percent for left foot calluses have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.72, Codes 7801, 7802, 7803, 7804, 5284 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. October 2004 (prior to the adjudication on appeal) and June 2007 letters advised the appellant of what type of evidence was needed to substantiate the claims, and of his and VA's responsibilities in the development of the claims. The letter advised the veteran to submit any evidence in his possession and to notify VA of any information that pertained to his claims. The June 2007 letter discussed the manner in which VA determines disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Board has considered the adequacy of the VCAA notice in light of the recent Court decision in Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The Boards finds that the VCAA notice is adequate as the June 2007 letter, which includes Dingess/Hartman notice, informs the appellant that, in evaluating claims for increase, VA looks at the nature and symptoms of the condition, severity and duration of the symptoms, and impact on employment. The evidence that might support a claim for an increased rating was listed. The veteran was told that ratings were assigned with regard to severity from 0 percent to 100 percent, depending on the specific disability. The claims were subsequently readjudicated by January 2008 supplemental statement of the case. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. The actions taken by VA have essentially cured any error in the timing of notice. In July 2007 correspondence, the veteran and his representative indicated that there was no additional evidence to submit to support his appeal. Thus, the Board concludes that the veteran had actual knowledge of all notice requirements regarding increased rating claims. Therefore, the veteran has been provided with all necessary notice regarding his claim for an increased evaluation. Vazquez-Flores v. Peake, supra. As the Federal Circuit Court has stated, it is not required "that VCAA notification must always be contained in a single communication from the VA." Mayfield, supra, 444 F.3d at 1333. With respect to VA's duty to assist, the veteran has been provided with VA examinations. Neither the veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. II. Factual Background, Criteria, & Analysis Disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations involve consideration of the level of impairment of the veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Where there is a question as to which of two evaluations should 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. 38 C.F.R. § 4.7. A 10 percent rating is now in effect for calluses of the right foot and a 10 percent rating is now in effect for calluses of the left foot. Calluses are not listed under any Diagnostic Code in VA's Schedule. An unlisted disorder may be rated under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. Conjectural analogies are avoided, as is the use of analogous ratings for conditions of doubtful diagnosis, or those not fully supported by clinical and laboratory findings. Ratings assigned to organic diseases and injuries are not assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The veteran's calluses are rated under Diagnostic Code 7804, and are thus rated by analogy under the criteria for superficial scars that are painful on examination which warrants a 10 percent maximum rating. See 38 C.F.R. §§ 4.20, 4.27. As the veteran is already receiving the maximum rating for each foot under Code 7804, the Board must consider other potentially applicable Codes that allow for a higher rating. The Board notes that consideration under Codes 7802 (for scars, other than head, face or neck that are superficial and that do not cause limited motion) and 7803 (for unstable superficial scars) would serve no greater benefit to the veteran as the maximum rating allowed under these Codes is also 10 percent rating. 38 C.F.R. § 4.118, Codes 7802, 7803. The veteran's foot calluses did not cause limited motion; therefore a rating under Code 7805 is not warranted. Under Diagnostic Code 7801, a 10 percent disability rating is warranted for scars, other than head, face, or neck, that are deep or that cause limited motion that have an area or areas exceeding 6 square inches; a 20 percent rating is warranted when the area or areas exceeds 12 square inches, a 30 percent rating is warranted when the area or areas exceeds 72 square inches, and a 40 percent rating is warranted when the area or areas exceeds 144 square inches. 38 C.F.R. § 4.118, Code 7801. Functional loss of the foot due to injury is rated under Diagnostic Code 5284. Under Diagnostic Code 5284, moderate foot injury warrants a 10 percent evaluation, moderately severe foot injury warrants a 20 percent evaluation, and severe foot injury warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Here, 2003 to 2005 treatment records from Central Texas Health Care System showed complaints of bilateral foot pain, and showed that the veteran was issued prosthetic insoles and used topical treatment. In October 2004, he had moderate discomfort with palpation of the plantar fascia bilaterally. There was no localized swelling or discoloration. His right toes were very close together with the 1st and 5th toes impinging on the 2nd and 4th toes, respectively. The skin was intact. He was diagnosed with plantar fasciitis. In November 2004, he was also diagnosed with tinea pedis and was prescribed a topical gel. A March 2005 record from the podiatry nail care clinic showed that the veteran presented for palliative care. He reported that he had been diagnosed with diabetes mellitus recently. On examination, there were no corns or calluses. January 2005 VA examination, noted complaints of recurrent callous formation of the plantar aspect of both feet which had been present since the 1950's shortly after entering the military. He complained of increased pain with prolonged standing and walking when calluses were enlarged. Treatment consisted of recurrent trimming of the lesions about every 6 months. This had provided good relief of symptoms. He had no history of systemic symptoms. Examination revealed well defined hyperkeratotic formation of the plantar aspect of both feet measuring 0.5 cm on the left foot and 0.25 cm on the right foot. This was consistent with "plantar warts". Less than 1% of the body surface was involved. The diagnosis was hyperkeratosis/"plantar warts" both feet. A June 2005 VA examination for diabetes mellitus noted that the veteran had pain of plantar fasciitis in the feet and no persisting paresthesias. An examination of extremities, including his feet showed that he had normal pulses, the skin was supple, and there were no ulcers. On December 2007 VA examination, it was noted that the claims file was reviewed in detail. A medical history was reported of plantar hyperkeratotic lesions that waxed and waned for years, since the veteran's days in the military. It was noted that podiatric treatment for the calluses had been so beneficial recently, that currently, the calluses were in remission. The veteran was wearing a custom made diabetic type shoe made with custom pads in the appropriate positions. Neither medicinal treatment nor any topicals were necessary. There was no hyperkeratosis of the plantar aspect (submetatarsal) at this time. He had not required any paring or trimming of the skin of his feet for many months. Podiatric records showed that he had plantar fasciitis, which the examiner noted was a separate and unrelated condition of the plantar aponeurosis, and not an epidermal condition, as was the plantar hyperkeratosis for which he was service connected. The plantar callous condition had been waxing and waning for years and was in remission at the present time. Treatment consisted of periodic podiatric parings of the hyperkeratosis, along with orthotic pads and diabetic shoes with no topical or systemic medication. There were no local skin symptoms or any systemic symptoms. There were no neoplasms of the skin. On examination, the feet were symmetrical in appearance. The pulses were good. Hair distribution was normal. The skin of the feet was simple and intact, without abnormal discoloration or any breakdown. The plantar surfaces were smooth and without any calluses or hyperkeratosis lesions whatsoever, bilaterally. There was no tenderness to deep palpation. There was no exposed skin or total skin of the body involved; there was an absence of the skin lesions. He had mild hallux abductovalgus deformity bilaterally, unrelated to the claimed condition. He was well able to rise up and walk on toes and heels and there was no gait disturbance. There was no scarring or disfigurement. The diagnosis was bilateral plantar hyperkeratosis, submetatarsal, currently in remission with no lesions found. In light of the evidence, the Board finds there is a preponderance of the evidence against both the veteran's increased rating claims for calluses of the right and left foot and the appeal must be denied. As noted above, 10 percent is the highest rating permitted under Codes 7802, 7803, and 7804. Also, as the veteran's right and left foot calluses have never been noted to be deep or to cause limited motion, and does not exceed 12 square inches in area, a rating in excess of 10 percent is not warranted under the criteria for Code 7801. Finally, the record has at no point reflected that the veteran suffers impairment of right foot function analogous to moderately severe or severe or severe foot injury due to his right and left foot calluses, and thus a rating of excess of 10 percent under Code 5284 is not warranted. Throughout the appeal period, VA examinations indicated that there were no residual scars, and no limitation of left or right foot function that was caused by his calluses. In deciding the veteran's increased evaluation claim, the Board has considered the determination in Fenderson v. West, 12 Vet. App. 119 (1999) and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The Board finds that the currently-assigned rating has been consistent throughout the appeal period. Thus, no separate periods of different ratings are in order. Finally, to accord justice in exceptional cases where evaluations provided by the Ratings Schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). In this case, the Board finds that the regular schedular standards applied in this case adequately describe and provide for the veteran's right and left foot calluses. There is no objective evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the disabilities that would take the veteran's case outside the norm so as to warrant an extraschedular rating. ORDER An initial disability rating in excess of 10 percent for right foot calluses is denied. An initial disability rating in excess of 10 percent for left foot calluses is denied. ____________________________________________ V. L. Jordan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs