Citation Nr: 1321097 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 07-21 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for bilateral plantar calluses. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served from November 1986 to March 1987, and from March 1988 to August 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, established service connection for bilateral plantar calluses, evaluated as 10 percent disabling, effective July 25, 2005. The Veteran appealed, contending that a higher rating was warranted. The Board notes that the Veteran initially requested a hearing before a Veterans Law Judge of the Board in conjunction with this appeal, and such a hearing was scheduled for January 2009. However, the Veteran withdrew her hearing request via a January 2009 written statement. See 38 C.F.R. §§ 20.702(e), 20.704(e) (2012). This case was previously before the Board in February 2011, at which time it was remanded for further development. FINDINGS OF FACT 1. The record reflects the Veteran has plantar calluses of both feet that have resulted in moderate impairment of each foot. 2. The Veteran's service-connected bilateral plantar calluses are not manifested by moderately severe impairment of either foot. CONCLUSIONS OF LAW 1. The criteria for a rating of no more than 10 percent for plantar calluses of the right foot are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). 2. The criteria for a rating of no more than 10 percent for plantar calluses of the left foot are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board notes that the Veteran's current appeal originates from a disagreement with the initial rating assigned following the establishment of service connection. In Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, VA's duty to notify regarding this issue is satisfied. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). In addition, the Board finds that the duty to assist the claimant in the development of her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of her appeal, and nothing indicates she has identified the existence of any relevant evidence that has not been obtained or requested. For example, she has not identified outstanding evidence detailing symptoms of her service-connected bilateral plantar calluses which are not demonstrated by the evidence already of record. As noted in the Introduction, the Veteran withdrew her request for a Board hearing in January 2009. Moreover, she was accorded VA medical examinations in February 2006 and May 2011 which included findings as to the symptomatology of her bilateral plantar calluses which are consistent with the rating criteria and treatment records on file. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. This case was previously before the Board in February 2011, at which time it was remanded for further development to include obtaining additional records and according the Veteran a new VA medical examination of her plantar calluses. Additional VA records have been added to the file, and a VA medical examination was accomplished in May 2011 which, as detailed below, the Board finds is adequate for resolution of this case. All other development directed by the Board's remand appears to have been substantially accomplished. Accordingly, a new remand is not required in order to comply with Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The VA Rating Schedule does not have a specific Diagnostic Code for plantar calluses, and the Veteran's service-connected disability has been evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284. Under this Code, moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent rating requires moderately severe residuals. Severe residuals of foot injuries warrant a 30 percent evaluation. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The record reflects, to include both the February 2006 and May 2011 VA medical examinations, that the Veteran has complained of painful calluses of both feet and that she has pain in both feet with standing or walking. Treatment records also note complaints of bilateral foot pain due to the calluses, as well as swelling. Accordingly, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are for consideration in the instant case. However, as detailed below, the record does not show more than moderate impairment of either foot even when taking into account the Veteran's complaints of pain. The February 2006 VA examination noted tender calluses of both feet on physical examination. However, there was no evidence of abnormal motion, crepitus, instability, mass, muscle atrophy, painful motion, redness, spasm, heat, weakness, or incoordination on this examination. Further, her gait and circulation was normal. There was no deformity or structural abnormality, nor evidence of malunion/nonunion of tarsal/metatarsal joints. There was evidence of abnormal weight bearing and abnormal shoe pattern, with increased wear on the outside edge of the right heel noted. The left shoe wear pattern was found to be normal. The examiner noted the calluses had significant effect on occupational activities due to decreased mobility, pain, and resulting in increased absenteeism. Additionally, it had moderate effect on exercise, and mild effect on driving. It had no effect on feeding, bathing dressing, toileting, or grooming. The May 2011 VA medical examination noted that the Veteran's complaints included bilateral foot pain, to include while standing, walking, and at rest. She also experienced swelling, stiffness, fatigability, weakness, and lack of endurance. She did not identify heat or redness of either foot. On examination, there was no evidence of instability or weakness of either foot. Further, neither foot had evidence of hammertoes, hallux valgus or rigidus, skin or vascular foot abnormality, pes cavus (claw foot), or muscle atrophy. There was evidence swelling, tenderness, and abnormal weight bearing with callosities of each foot. It was also noted that the calluses were mildly tender to pressure, but were currently small and well maintained due to regular visits to the pedicurist. The Veteran was noted to have a bit of a waddling gait favoring the right foot a little. The examiner also noted that the Veteran's occupation (child care provider) required prolonged standing, walking, lifting, bending, stooping; activities that aggravate foot pain on a daily basis; and that foot pain prevented working at full capacity as she had to take frequent breaks to sit and elevate her feet. Further, the examiner noted that the foot symptoms prevented sports; and had moderate effect on chores, shopping, exercise, recreation, and traveling. However, the examiner attributed the foot pain to both the service-connected calluses and nonservice-connected plantar fasciitis. Moreover, the examiner stated that the pain appeared to be caused more by the plantar fasciitis than the calluses, and that the calluses were only contributing "mildly" to the pain and disability. In addition, the examiner indicated the foot symptoms had no effect on feeding, bathing, dressing, grooming, or driving. The Board notes that it is not bound by the May 2011 VA examiner's term "mild" in evaluating the overall severity of the Veteran's service-connected disability, or the other references to "moderate" effect of foot symptoms on both VA examinations. Nevertheless, it is consistent with the fact that little overall functional impairment of the feet is demonstrated on the aforementioned VA medical examinations, as well as the treatment records on file. As such, the Board finds that the evidence of record indicates no more than moderate impairment of the Veteran's feet due to her service-connected plantar calluses, and she does not meet or nearly approximate the criteria of moderately severe impairment so as to warrant the next higher rating under Diagnostic Code 5284. The Board also notes, however, that Diagnostic Code 5284 indicates it is for evaluation of a single foot disability, and the evidence indicates the Veteran experiences pain and overall moderate impairment of both feet. Granted, the May 2011 VA examiner opined in an August 2011 addendum that, in essence, the left foot calluses and foot pain were due to military service, but not the right. Nevertheless, this opinion is irrelevant to the present appellate claim as service connection has already been established for bilateral calluses of the feet; i.e., both feet are service-connected. Resolving reasonable doubt in favor of the Veteran, the single disability of bilateral plantar calluses is being separated into a 10 percent rating for plantar calluses of the right foot and a 10 percent rating for the left foot. In making the above determination, the Board took into consideration the applicability of "staged" ratings pursuant to Fenderson, supra. However, a thorough review of the record does not indicate any distinctive periods where the symptomatology of either foot met or nearly approximated the criteria for a rating in excess of 10 percent under Diagnostic Code 5284. Therefore, "staged" ratings are not warranted in this case. The Board notes that it has also considered the applicability of other foot diagnostic codes. In pertinent part, the Rating Schedule addresses musculoskeletal disorders at 38 C.F.R. § 4.71a, and addresses foot disabilities at Diagnostic Codes 5276 through 5284. However, none of these codes adequately address her service-connected plantar calluses, nor would support an evaluation in excess of that currently being assigned based on the symptoms resulting from her service-connected disability. Accordingly, the Board finds Diagnostic Code 5284 to be the most appropriate and the most favorable code for rating the Veteran's service-connected plantar calluses. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012). The 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 extraschedular 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 extraschedular 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). The Board finds that the rating criteria contemplate the Veteran's service-connected disability. The nature of Diagnostic Code 5284 is such that it requires VA to consider all of the symptomatology from the service-connected foot disability, and to determine the overall functional impact these symptoms have upon the foot. The rating criteria are therefore adequate to evaluate the Veteran's service-connected bilateral plantar calluses and referral for consideration of an extraschedular rating is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A separate rating of no more than 10 percent for plantar calluses of the right foot is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. A separate rating of no more than 10 percent for plantar calluses of the left foot is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs