Citation Nr: 1329895 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 12-10 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable evaluation for right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which, among other things, granted service connection for right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface assigning a noncompensable rating, and granted service connection for scars status post plantar wart surgery assigning a 10 percent disability rating. The February 2012 rating decision indicated that the Veteran's right foot plantar aspect with residual small planter fibromatosis (claimed as right foot condition) was deferred; however, it appears the RO recharacterized the claimed right foot condition to the above mentioned disabilities. The Veteran filed a timely notice of disagreement to the issue of right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface. Although the notice of disagreement is not in the claims file, the RO considered it in the April 2012 statement of the case. The Veteran only perfected his appeal as to right foot status for recurrent plantar warts of the anterior portion of the plantar surface. Accordingly, that is the only issue currently before the Board. The Veteran indicates that he has depression, anxiety, and problems with his right ankle, knee, leg, hip, and back as secondary to his right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface. The RO appears to be addressing these claims. As such, referral is not necessary at this time. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated from January to April 2012 which were considered by the RO in the April 2012 statement of the case. The remaining records are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's service-connected right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface involves localized or episodic cutaneous involvement without intermittent systemic medication. CONCLUSION OF LAW The criteria for a compensable evaluation for right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.20, 4.31, 4.118, Diagnostic Codes (DC) 7899-7824. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify 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, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist claimants in the development of their claims. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As noted above, the claim for a higher rating for right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface arises from the Veteran's disagreement with the rating assigned in connection with the grant of service connection for this disability. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to 'downstream' questions, the claim has been substantiated and there is no need to provide additional VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Further discussion of the VCAA's notification requirements with regard to this claim is therefore unnecessary. The Board notes that the Veteran was provided VCAA compliant notice with regard to his disability rating in a March 2011 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and post-service VA treatment records. The Veteran indicated in a January 2011 authorization and consent to release information form that he received treatment from Podiatry Associates of Victoria in January 2004 for a right foot condition. VA requested those records in March 2011. A March 2011 letter from Podiatry Associates of Victoria reflects the Veteran never sought treatment at that location. The Veteran was afforded VA contract examinations in October 2011 and February 2012. As shown below, these examinations were adequate because they were based on consideration of the Veteran's prior medical history and also described the disability in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim is thus ready to be considered on the merits. Legal Principles and Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the evidence establishes that the disability has not significantly changed and a uniform evaluation is warranted. The Veteran contends that he is entitled to a compensable rating for his service-connected right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface, which is currently assigned a noncompensable rating pursuant to 38 C.F.R. § 4.118, Diagnostic Codes 7899-7824. The provisions of 38 C.F.R. § 4.27 instruct that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code 7824 is for diseases of keratinization (including icthyoses, Darier's disease, and palmoplantar keratoderma). In this regard, palmoplantar keratoderma is defined as a group of mostly inherited disorders characterized by excessive formation of keratin on the palms and soles, which may be localized or diffuse, and sometimes painful lesions resulting from fissuring of the skin. Called also hyperkeratosis. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). Hence, the Board finds that nucleated hyperkeratosis may be included among the diseases of keratinization, to specifically include palmoplantar keratoderma. Under DC 7824, a noncompensable rating is warranted for a disability requiring no more than topical therapy during the past twelve-month period. A 10 percent rating is warranted for localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids, for a total duration of less than six weeks during the past twelve-month period. A 30 percent rating requires either generalized cutaneous involvement or systemic manifestations, and; intermittent systemic medication, such as immunosuppressive retinoids, for a total duration of six weeks or more, but not constantly, during the past twelve-month period. The maximum potential rating, 60 percent, requires a showing of either generalized cutaneous involvement or systemic manifestations, and; constant or near-constant systemic medication, such as immunosuppressive retinoids, during the past twelve-month period. 38 C.F.R. § 4.118, DC 7824 (2012). The Board finds that a compensable rating for the Veteran's right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface is not warranted. To meet the 10 percent disability rating criteria, the Veteran must require localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids . See 38 C.F.R. § 4.118. Evidence relevant to the current level of severity of the Veteran's right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface includes VA treatment records from February 2011 to April 2012, VA contract foot examinations dated October 2011 and February 2012, VA contract scars examination dated February 2012, and the Veteran's lay statements. VA treatment records from February 2011 to April 2012 reflect a history of surgeries and biopsies on the Veteran's right foot with resulting scars and recurrent painful lumps on the bottom of his right foot. The Veteran indicated that, while in service, military medical personnel diagnosed the painful lumps as plantar warts. Upon dermatological examination in February 2011, the VA podiatrist noted the Veteran had nucleated hyperkeratosis that was very tender and rendered a diagnosis of porokeratosis. The VA treatment records reflect the Veteran felt better after treatement, but the pain returned. The VA podiatrist noted in April 2012 that the Veteran's foot was, "so exquisitely tender, cannot even pare adequately." The ongoing assessment provided that the Veteran had a painful plantar scar with neural elements in the scar that would be treated by paring the hyperkeratosis and applying phenol, a sclerosing agent, to desensitize painful nerves in his scar, with a possibility of adding 5 percent alcohol injections or surgical excision in the future. The Veteran was treated with lidocaine and had been prescribed gabapentin, ultram, and tramadol for his pain. During an October 2011 VA contract foot examination the Veteran reported he was diagnosed with a right foot condition in 1991 due to a hole in his right heel. He complained of constant, localized pain in his right heel and ball of his foot. The Veteran noted that, while at rest, he had pain and swelling in his right foot but no weakness, stiffness, or fatigue. He further noted that while standing or walking he had pain, stiffness, swelling, and fatigue in his right foot. The Veteran indicated he underwent foot surgery in 1996 with no improvement to the residuals. The bone condition had never been infected. He reported that he was treated with gabapentin and tramadol for his pain. Upon physical examination of the musculoskeletal system, the examiner reported evidence of abnormal weight bearing as a result of the Veteran walking with his sole turned inward to avoid putting weight on his right foot. The examination did not reveal unusual shoe wear patterns, callosities, or breakdown. In regard to ambulation, the examiner noted the Veteran required a knee brace. Physical examination of the feet and toes revealed tenderness but no painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. The examiner noted extreme tenderness of the planter surface of the right foot. The examiner reported hallux valgus was present but the degree of angulation was slight with no resection of the metatarsal head present. There was no pes planus, pes cavus, hammer toes, Morton's Metatarsalgia, nor hallux rigidus present. The Veteran had limitations with standing and walking, as he could only stand for 15 to 30 minutes. The examiner noted the Veteran did not require support in his shoes. Diagnostic testing revealed pes planus deformity in the right foot. The examiner did not conclusively diagnose the Veteran's condition. He reasoned that a diagnosis could not be provided because the Veteran received multiple biopsies which had not resulted in a conclusive diagnosis, only that he had a recurring growth above the planter sole that grew back with increasing levels of pain. The examiner subsequently filed an addendum opinion and stated the Veteran had status post multiple biopsies of right foot planter aspect with residual small planter fibromatosis. The examiner noted occupational impairment as a result of the condition because the Veteran could not walk normally and his jogging required walking and the use of knee brace. During a VA contract scars examination in February 2012 the examiner reported the Veteran had a painful scar on the anterior aspect of the plantar surface of the right foot with overlying hyperkeratotic skin with callus formation at the place where multiple biopsies had been performed. The examiner indicated the Veteran also had a scar on the plantar aspect of the right foot heel which was not painful. In regard to occupational impairment, the examiner reported the Veteran experienced pain due to the residual callosity at the site of the scar, had trouble walking or standing for prolonged periods of time, and limped when he walked. During a VA contract foot examination in February 2012 the examiner reported, historically, the Veteran had several biopsies on his right foot for warts with recurrent pain. The examiner further reported the Veteran was treated by a podiatrist who partially shaved off the warts and applied topical treatment. The Veteran was prescribed gabapentin and tramadol for his pain. Upon examination, the examiner noted the Veteran had hallux valgus with mild to moderate symptoms on his right foot, pes planus right foot, and status post surgery for recurrent planar warts, anterior aspect of plantar surface of right foot. The examiner reported the Veteran did not have Morton's disease, hammer toe, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, bilateral weak feet, or any other foot injury. Diagnostic testing revealed the Veteran had pes planus right foot and hammer toes. The examiner noted the Veteran had shoe inserts but did not use any assistive devices as a normal mode of locomotion. The examiner opined that the Veteran experienced a lot of pain when walking due to the residual callosity status post recurrent biopsies of the plantar warts in his right foot. In regard to his occupational impairment, the examiner noted it impacts his ability to work in his current profession as an electrical technician because he has trouble walking at the plant. Given the evidence of record, the Board finds that compensable rating is not warranted. A 10 percent disability rating requires localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of less than six weeks during the past 12-month period. The evidence of records shows the Veteran has not been treated with such systemic medication. VA treatment records from February 2011 to April 2012 indicate that the Veteran has been treated by paring the hyperkeratosis and applying sclerosing agents and topical creams to the affected area. The Veteran also takes pain medications. The Board notes that that the Veteran's oral pain medications are not considered systemic medications, such as immunosuppressive retinoids. The Veteran also does not contend that systemic medications, such as immunosuppressive retinoids, have been required at any time during the appeal period. A 10 percent disability rating is therefore not warranted. The Board has also considered whether a disability rating in excess of 10 percent is warranted; however, as above, a rating of 30 percent or 60 percent is not warranted because those rating criterion also require systemic medication. The Board has also considered the applicability of other diagnostic codes used for evaluating skin disorders under 38 C.F.R. § 4.118. The provisions of Diagnostic Codes 7800-7805 are not applicable as they are specifically related to scars and the Veteran is already in receipt of a rating for painful scars that contemplates his functional impairment under Diagnostic Code 7804. Assigning a separate rating for his pain and functional impairment would constitute pyramiding as he would be compensated twice for the same symptomatology. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). Moreover, other Diagnostic Codes for skin disorders direct the disability to be rated as analogous to the Diagnostic Codes 7800 to 7806 which also require systemic medication such as immunosuppressive drugs. The Board has also considered whether a higher rating is warranted under any other potentially applicable diagnostic code for injuries related to the foot under 38 C.F.R. § 4.71a, but the examination findings reflect that there is no claw foot, metatarsalgia, hammer toe, weak foot, or malunion or nonunion of tarsal or metatarsal bones. There is thus no basis on which to rate the Veteran's disability by analogy pursuant to Diagnostic Codes 5277 through 5283, even assuming that the symptomatology would warrant higher ratings under any of those diagnostic codes. The Board notes that the October 2011 and February 2012 VA contract examinations reveal the Veteran has hallux valgus and pes planus of the right foot; however, the Veteran is not service connected for those disabilities. The Board has also considered the applicability of Diagnostic Code 5284 for other foot injuries. The Veteran's right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface manifests as plantar warts and nucleated hyperkeratosis which are skin conditions and not injuries of the foot. Therefore, Diagnostic Codes 5276 to 5284 for diseases and injuries of the foot are not applicable. The Board notes that it has considered the Veteran's statements in his April 2012 VA Form 9 that his loss of functionality and corresponding occupational impairment were not afforded due consideration. The Veteran further stated that his treatment was more invasive than merely topical and the treatment did not resolve the issue of impairment. In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. Here, however, the Veteran's assertions are afforded low probative value. As above, the Veteran's functional impairment including pain and difficulty walking were considered and contemplated in his rating assignment for scars status post plantar warts surgery. In regard to the Veteran's assertion that his current treatment is more than topical, in order to warrant a compensable rating, the Veteran must require systemic medications. 38 C.F.R. § 4118. He does not contend that his disability requires systemic therapy. The Board notes, the Veteran's claim that his lack of normal functionality has caused depression and anxiety, as well as pain in his leg, hip, and back, those issues are not before the Board at this time and the Board has no jurisdiction to adjudicate those claims. Extrascheduler Considerations Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether an extraschedular rating is warranted. In this case, the Veteran's symptomology and overall impairment for his right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface are fully contemplated by the applicable rating criteria. As above, the Veteran is compensated for his pain and pain related functional impairment in his disability rating for his service-connected scars status post plantar wart surgery. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the evidence reflects that the Veteran's right foot status post surgery for recurrent plantar warts of anterior portion of the plantar surface has not caused marked interference with employment. The Veteran is currently employed as an electrical technician, and although the VA treatment records indicate he used all of his annual leave to attend medical appointments, he has not been hospitalized for his service-connected disability during the appeal period. As such, the Veteran's symptoms have not rendered impractical the application of the regular scheduler standards. Therefore, referral for consideration of extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1). In addition, the Board has considered the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), where the Court held that a claim for a total disability based on individual unemployability (TDIU) either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not alleged that his service-connected disability renders him unemployable. During the February 2012 VA contract examination the Veteran stated that he was employed as an electrical technician. As such, the Board finds there is no implicit claim for TDIU. For the foregoing reasons, the preponderance of the evidence is against the claim for a compensable rating for right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface. The benefit-of-the-doubt doctrine is therefore not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER A compensable evaluation for right foot status post surgery for recurrent plantar warts of the anterior portion of the plantar surface is denied. ____________________________________________ H. N. SCHWARTZ. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs