Citation Nr: 1301419 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 07-12 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increase in the 10 percent evaluation currently assigned for calluses and corns on the left foot. 2. Entitlement to an increase in the 10 percent evaluation currently assigned for calluses and corns on the right foot. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Lee, Associate Counsel INTRODUCTION The Veteran had active service from July 1974 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 decision by the RO. In a January 2011 decision, the Board remanded the claims for additional development. The development has been completed and the claims have been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. Evidence throughout the appeal period reflects that the Veteran's service-connected calluses and corns of the left foot have been productive of symptoms of pain; moderately severe disability is not shown. 2. Evidence throughout the appeal period reflects that the Veteran's service-connected calluses and corns of the right foot have been productive of symptoms of pain; moderately severe disability is not shown. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for calluses and corns of the left foot are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, 4.118, Diagnostic Codes 5284 (2012), 7804 (in effect prior to 2008). 2. The criteria for an evaluation in excess of 10 percent for calluses and corns of the right foot are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159, 4.1, 4.2, 4.3, 4.7, 4.71a, 4.118, Diagnostic Codes 5284 (2012), 7804 (in effect prior to 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claim, a letter dated in May 2005, fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records and all VA and private medical records have been obtained and associated with the claims file. The Veteran was examined by VA during the pendency of the appeal and was afforded an opportunity for a personal hearing, but declined. Further, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). When, after careful consideration of all procurable and assembled evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The record shows the Veteran was service connected for calluses and corns of the feet in a July 1995 rating action, and assigned a non-compensable evaluation. In a September 2005 rating action, a 10 percent evaluation was assigned for each foot under Diagnostic Code 7804, with the calluses and corns considered analogous to tender scars. This is the highest rating under that code. [The criteria for evaluating skin disability was amended in 2008, after this matter was initiated. Therefore, the criteria in effect prior to 2008, are used in this decision.] The other applicable criteria for this disability would be Diagnostic Code 5284 (foot injuries, other). Under this code, moderate disability is assigned a 10 percent rating, and moderately severe disability is assigned a 20 percent rating. Based on the reasoning that follows, the evidence establishes that the Veteran's service-connected disability picture does not more nearly approximate the criteria for an evaluation in excess of 10 percent for each foot under the applicable Diagnostic Codes during any period of time at issue in this appeal. A review of the record shows the Veteran was examined by VA in November 2005. That revealed that on the left foot at the base between the heads of the second and third metatarsals, there was a 1.5 cm, round, firm callus that was quite tender. On the Veteran's right foot at the base of the second metatarsal, the Veteran had a 2 cm, hard, firm callus on the ball of the foot, which was exquisitely tender to palpation. On the medial aspect of the right great toe, there was a small callus, which was tender. VA examination in June 2009, revealed a tender corn at the base of the right great toe, together with a tender callus on the second metatarsal head of the right foot. At the medial edge of the nail of the Veteran's left (apparently great) toe he had a callus, and at the ball of the third toe at the metatarsal head the Veteran had a tender callus. During a February 2011 VA examination, the Veteran reported a history of bilateral pain, swelling, stiffness, fatigability, weakness, and lack of endurance, while standing and walking; he reported experiencing these symptoms on the soles of his feet, and along both sides of his arches. Symptoms of heat, or redness were not identified, nor were flare-ups of foot disease. The Veteran reported being able to walk 1/4 of a mile and stand for 15-30 minutes. The examiner noted that the Veteran required the use of a cane and corrective shoe inserts due to a combination of conditions including non-service connected bilateral hip disability, non-service connected diabetic neuropathy as well as the calluses and corns. Upon physical examination, the Veteran's left and right feet showed objective evidence of painful motion, tenderness, and abnormal weight bearing. There was no objective evidence of swelling, instability, weakness, or other abnormalities. Calluses and corns were noted. There was no evidence of deformity or malunion or nonunion of the tarsal or metatarsal bones. X-ray findings showed no acute abnormalities, and no significant degenerative changes. A linear ossific density adjacent to the base of the right fifth metatarsal was noted, but the examiner opined that it was likely from a previous trauma. The examiner reconfirmed the Veteran's diagnosis of corns and calluses on the both his feet. However, he opined that the Veteran's functional loss is not commensurate with a moderately severe foot injury. In making this determination, the examiner reasoned that the Veteran's current bilateral foot condition is a condition of abnormal weight bearing. The examiner specifically noted that the Veteran has not sought any podiatric care for his condition, and that the objective physical findings from the physical examinations and x-rays, fail to correlate with his symptoms. The overall evidence, in the Board's opinion, supports the assignment of a 10 percent rating, and no more for the left and right foot. In this regard, the Board observes that the Veteran's service connected disability is limited to corns and calluses. These are shown to be tender and painful. The analogous rating for a scar is 10 percent for those affecting each foot. (Multiple corns/calluses on any one foot would not warrant a rating for each individual corn/callus because of their proximity to each other. See Diagnostic Code 7802, Note 1 in effect prior to 2008, where it describes scars on widely separated areas warrant separate ratings.) The calluses/corns themselves appear to cause no other impairment than the discomfort. The examiner noted that physical inspection failed to reflect findings that correlated with the Veteran's complaints/symptoms, and likewise failed to find moderately severe impairment. Under these circumstances, the Board concludes the criteria for increased ratings for the disabilities at issue are not met. In reaching this decision, the Board has also considered functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, while the Veteran has some pain and tenderness in his feet, he has not demonstrated any additional functional impairment due to his service-connected left and right foot conditions at anytime during the pendency of this appeal. On the most recent VA examination in February 2011, the examiner indicated that the Veteran's bilateral foot symptomatology did not significantly affect his ability to work. What is more, the examiner indicated that the objective findings do not correlate with the Veteran's reported symptoms. In sum, the evidence of record does not show any additional functional impairment in his feet commensurate with the criteria for an evaluation in excess of the 10 percent rating currently assigned for each foot. 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). Here, there was no probative evidence of any functional loss due to pain or repetitive use to the degree necessary for the assignment of a higher evaluation. Thus, the claim for increase must be denied. Extraschedular Consideration The Board has further considered whether the increased rating claims above warrant referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. 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, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. After comparing the manifestations and demonstrated impairment of function of the Veteran's disabilities to the rating and schedular criteria, the Board does not find any current symptoms or functional impairment that are not contemplated by the schedular ratings available. Therefore, the schedular criteria are not inadequate, and referral for consideration of extraschedular rating is not necessary. Thun, supra. Lastly, as the Veteran is employed, consideration of a rating for unemployability is not indicated. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increase in the 10 percent evaluation for calluses and corns on the left foot is denied. Entitlement to an increase in the 10 percent evaluation for calluses and corns on the right foot is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs