Citation Nr: 1216705 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 06-10 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a compensable rating for bilateral foot calluses. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active military service from June 1971 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) from a September 2004 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA) that, in relevant part, denied a compensable rating for bilateral foot calluses. In June 2010, the Veteran was scheduled for a personal hearing before a Veterans Law Judge at VA's Central Office in Washington, D.C. He failed to report. His request for a hearing is, by regulation, considered withdrawn. In June 2010, the Board remanded the case for further evidentiary development. The Board is satisfied the development has been accomplished and will proceed to address the merits of the claim in this decision. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT During the pendency of this appeal, the Veteran's service-connected bilateral foot calluses resulted in local pain at times, in circumstances requiring the Veteran to stand for a long period of time, and excess keratotic material was removed several times through June 2007, but the calluses have been asymptomatic for five years of the appeal period, since February 2007, and the Veteran's symptoms, did not approximate any criterion for a compensable evaluation. CONCLUSION OF LAW The criteria for a compensable rating for bilateral foot calluses have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Duty to Notify The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a May 2004 letter, prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate a claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claim. He was not informed of how disability ratings and effective dates are assigned. However, the Board finds that the Veteran is not prejudiced by the defect as the preponderance of the evidence is against the claim. Hence, any question as to a disability rating and/or an effective date to be assigned is moot. Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor his representative has pointed out any deficiency that requires corrective action. Duty to Assist The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's VA treatment records, VA examination reports, and the Veteran's statements. The Veteran was afforded VA examinations in 2004, 2009, and 2010 in conjunction with his claim. The examination reports in the file reflect that the examiners reviewed the Veteran's past medical history, including the service treatment records, documented his current medical conditions, and rendered appropriate diagnoses and opinions with rationale, consistent with the remainder of the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board therefore concludes that they are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Consequently, the Board finds that VA's duty to assist has also been met in this case. Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2011). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2011). Consideration of the recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2011); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The regulations require that where there is a question as to which of two evaluations is to 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 (2011). After careful consideration of the evidence, any reasonable doubt remaining should be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3 (2011). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's bilateral foot calluses are currently rated by analogy as noncompensable under Diagnostic Code 5276. Diagnostic Code 5276 provides ratings for acquired flatfoot. Mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensably (0 percent) disabling. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis (Achilles tendon), pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.40 concern lack of normal endurance, functional loss due to pain, and pain on movement and during flare-ups; the provisions of 38 C.F.R. § 4.45 concern weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A February 2004 VA treatment record noted callosities. Although mycotic nails were debrided, it was not reported that any callosity of the feet were trimmed. VA examination conducted in June 2004 discloses that the Veteran had a small, 2cm by 2cm flat callus at the base of the 3rd metatarsal on the right foot and a smaller callus at the base of the great toe on the left foot. The calluses were flat but slightly raised. The Veteran had recently undergone shaving of the calluses in the Podiatry Clinic. The Veteran reported that the calluses caused local pain and he had difficulty standing for long periods of time. The examiner stated that the Veteran's gait was normal and he walked without appreciable discomfort. There was no point tenderness on palpation of the calluses and no surrounding erythema or tenderness. The Veteran's calluses were not compensable at the time of the 2004 VA examination under DC 5276, as the Veteran's normal gait establishes that he did not have pain on use of the feet, although the Veteran did report local pain at the calluses in circumstances which required him to stay on his feet for long periods of time. The examiner opined that it is unclear as to how the calluses resulted in disability, as the Veteran was walking with "no appreciable discomfort." The Board has considered whether a compensable evaluation could be assigned under any other applicable Diagnostic Code. The diagnostic codes for rating scars, as in effect when the Veteran submitted the 2004 claim underlying this appeal, are found at 38 C.F.R. § 4.118, DCs 7800-7806. DC 7800 applies only to scars on the head, face, or neck; thus, it is not for application in the Veteran's case. DC 7801 allows for a 10 percent rating, or higher, for scars, other than on the head, face, or neck, that are deep or that cause limited motion, which are an area exceeding 6 square inches (39 sq. cm.) or greater. As the calluses on the Veteran's feet are each 2cm by 2cm or less in size, this Diagnostic Code is not applicable to warrant a compensable evaluation. Under DC 7803, a maximum 10 percent rating is warranted for unstable scars. The Veteran did not report that the calluses blistered or otherwise caused loss of covering of the skin, so DC 7803 is not applicable. DC 7805 provides criteria for evaluating scars on the basis of limitation of function of the affected part. No limitation of function was shown on examination. DC 7804 provides for a maximum 10 percent rating for superficial scars that are painful on examination. The examiner specified that the calluses were not tender on point examination and that there was no surrounding erythema or tenderness. Thus, DC 7804 does not warrant a compensable evaluation for either callus. 38 C.F.R. § 4.118, DCs 7804, 7805 (as in effect from July 31, 2002, see 67 Fed. Reg. 49,596, as corrected September 16, 2002, see 67 Fed. Reg. 58,448). During the pendency of the appeal, the rating schedule for evaluating scars was revised and amended in 2008 and in 2012. See 73 Fed. Reg. 54,708 (Sept. 23, 2008; 77 Fed. Reg. 2909 (Jan. 20, 2012). The revision issued in 2008 was effective October 23, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date (or unrated as of that date). Because the Veteran's claim was received prior to October 23, 2008, the revised criteria are not for application in his case. Outpatient treatment in March 2006 reflects that there was a callus at the third metatarsal on the left foot. That callus was debrided and the Veteran was instructed to return in two month. In May 2006, the callus was debrided again and the Veteran was instructed to return in three months. In October 2006, the clinician stated that the Veteran was using orthotics for control of pain and had relief. The callus was debrided and the Veteran was instructed to return in four months. In February 2007, four months later, the callus on the left foot at the third metatarsal head was again debrided. The callus was not noted or treated at the time of June 2007 podiatric treatment or at the time of October 2007 podiatric treatment. Records of podiatric treatment in March 2008 and June 2008 include no notation regarding calluses, and no treatment for a callus was provided. Although the records dated in 2006 and early 2007 reflect that at least one callus was present, on the left foot, the callus did not result in compensable symptoms in 2006 or 2007, and no callus on either foot was noted or treated after February 2007. Upon VA examination in April 2009, the Veteran gave a history of foot calluses in service. However, presently they had resolved completely with treatment and he had no complaints related to the disability. Clinical evaluation revealed no callosities on either foot. There was also no pain, swelling, heat, redness, stiffness, fatigability, weakness, a lack of endurance or other symptoms related to the feet. There were no functional limitations with standing or walking. There were no deformities of the feet, and no muscle atrophy. The assessment was insufficient evidence to warrant a diagnosis. No foot disorders were present. Despite lay assertions from the Veteran and his representative to the contrary that prompted a remand and another VA examination, similar findings were made upon VA examination in July 2010. The Veteran specifically stated that nothing had changed since the last examination. He had virtually no problems with callosities, especially since his retirement from work as a warehouseman, when the necessity for wearing workboots ceased. He was currently receiving treatment only for toenail fungus. Specifically, he stated that there had been no outbreak of callosities on either foot for more than 12 years. Clinical evaluation revealed no callosities on either foot and no functional impairment related to the feet. Outpatient podiatry clinic treatment notes dated in 2011 reflect that the Veteran continued to receive treatment for tinea of the feet and for a fungus condition of the toenails, but there is no record that a callus was present on either foot or that a callus was treated in 2011. The medical evidence establishes that, during the pendency of this appeal, the Veteran's service-connected bilateral foot callosities have virtually resolved. There are no callosity symptoms present to warrant the assignment of a compensable rating under Diagnostic Code 5276 or any applicable Diagnostic Code. Hence, the Board concludes that a compensable rating may not be granted at any time during the appeal period. Ordinarily, VA's Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2011). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. The rating criteria reasonably describe the Veteran's disability level and symptomatology due to his service-connected disability. There is no competent, credible evidence that the Veteran has symptoms of bilateral foot callosities that are not contemplated in the rating criteria. In fact, the disability seems to have resolved since his retirement. Therefore, a further analysis under Thun is not warranted. For these reasons, the Board concludes that the preponderance of the evidence is against the claim. Therefore, the benefit-of-the-doubt doctrine does not apply, and the claim for a compensable rating for bilateral foot calluses must be denied. 38 U.S.C.A. § 5107(b); Alemany, supra; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable rating for bilateral foot calluses is denied. ____________________________________________ TRESA M. SCHLECHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs