Citation Nr: 1751988 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 09-35 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a disability rating in excess of 10 percent for post-operative calluses of the left foot. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to March 1986. This case comes before the Board of Veterans' Appeals (the Board) from a March 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in November 2010. A transcript of that proceeding has been associated with the claims file. The Board remanded the Veteran's claim in March 2011, October 2014, and November 2015 for further development. The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. In an April 2015 rating decision, the RO granted the Veteran service connection for impairment/neuropathy of the left anterior tibial (deep peroneal) nerve and assigned a noncompensable evaluation effective March 5, 2015. In May 2015, the Veteran submitted a response to an April 2015 Supplemental Statement of the Case (SSOC) in which he appeared to express disagreement with the rating assigned for his neuropathy disability. In November 2015, the Board directed the agency of original jurisdiction (AOJ) to contact the Veteran in order to clarify whether he intended his May 2015 correspondence to be a notice of disagreement with the disability rating assigned in the April 2015 rating decision. However, a review of the record reveals that the AOJ has not yet completed this direction. Thus, the Board finds that the AOJ should contact the Veteran and inquire whether he intended his May 2015 correspondence to be a notice of disagreement with the April 2015 rating decision granting service connection for impairment/neuropathy of the left anterior tibial (deep peroneal) nerve. If a positive response is received, the AOJ must issue the Veteran a Statement of the Case and undertake any additional development deemed necessary. FINDINGS OF FACT The Veteran's post-operative calluses of the left foot do not result in worse than moderate impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for post-operative calluses of the left foot have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to an increased disability rating for post-operative calluses of the left foot. Remand Compliance In March 2011, October 2014, and November 2015, the Board remanded this claim and ordered the AOJ to obtain outstanding VA medical treatment records as well as evidence from the Veteran and provide the Veteran with a VA examination for his post-operative calluses of the left foot. Pursuant to the Board's remand instructions, the AOJ attempted to obtain all outstanding VA treatment records. Further, the AOJ contacted the Veteran in order to obtain outstanding evidence which the Veteran thereafter submitted. Also, the Veteran was provided VA examinations in December 2014 and March 2016 for his post-operative calluses of the left foot. His claim was most recently adjudicated in an April 2016 supplemental statement of the case (SSOC). Accordingly, the Board finds that the remand instructions have been substantially complied with regarding the Veteran's post-operative calluses of the left foot claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Duties to Notify and Assist VA has a duty to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. This notice must specifically inform the claimant of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2017). In a letter mailed to the Veteran in December 2007, prior to the initial adjudication of his increased rating claim, VA satisfied this duty. VA also has a duty to assist a claimant in the development of his claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2017). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes statements from the Veteran, service treatment records, and VA treatment records. As noted above, the Veteran also was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his increased rating claim. Here, during the November 2010 Board hearing, the VLJ clarified the issue on appeal (increased rating for post-operative calluses of the left foot); clarified the concept of increased rating claims; identified potential evidentiary defects which included the severity of the Veteran's calluses of the left foot; clarified the type of evidence that would support the Veteran's claim; and enquired as to the existence of potential outstanding records. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. The Board notes that the RO attempted to obtain outstanding VA treatment records from the West Roxbury VA Medical Center from November 2006 to December 2006. However, the RO received a negative response for these records from the VA Medical Center in May 2011. The Veteran was thereafter informed of the negative response via a letter dated July 2011 and was directed to provide any of these records that may be in his possession. As evidenced by the claims folder, the Veteran did not send any records in response to the RO's letter. Although the absence of outstanding VA treatment records from the West Roxbury VA Medical Center from November 2006 to December 2006 is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records. Crucially, the RO attempted to locate these records and subsequently informed the Veteran of the negative response. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). The Board's decision to not remand the appeal again to obtain these records is supported by the fact that it appears that the RO made sufficient attempts to locate the VA treatment records. The Veteran was provided VA examinations for his post-operative calluses of the left foot in December 2007, July 2011, December 2014, and March 2016. The reports of the examination and opinions reflect that the examiners reviewed the Veteran's past medical history, documented his current medical conditions, considered the Veteran's lay statements, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Higher evaluation for post-operative calluses of the left foot Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). Benign skin neoplasms are rated under Diagnostic Code 7819. The Diagnostic Code indicates that benign skin neoplasms should be rated as disfigurement of the head, face or neck, scars, or impairment of function. On September 23, 2008, VA amended certain criteria for evaluating the skin. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). However, the amendments are only effective for claims filed on or after October 23, 2008, or in cases where the Veteran has requested review under the "new" rating criteria. The increased rating claim was filed prior to October 23, 2008, and the Veteran has not requested review under the new rating criteria. Thus, the rating criteria in effect prior to October 23, 2008, are applicable. Diagnostic Code 7804 provides a 10 percent rating for scars, superficial, painful on examination. See 38 C.F.R. § 4.118 (2007). Other injuries of the foot are rated under Diagnostic Code 5284. Moderate disability warrants a 10 percent rating; moderately severe disability warrants a 20 percent rating; and severe disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The rating schedule does not define the terms "mild," "moderate," or "severe." Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two evaluations shall 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected post-operative calluses of the left foot. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. The Veteran was provided a VA examination in December 2007. He noted his in-service surgery in 1985 when he had surgery to correct a claw toe and developed a callus after the surgery which became worse. He reported pain when standing, walking, and at rest. The location of the pain was in the left toes 3, 4, and 5 and outside the fifth metatarsal head on the left foot. The Veteran also noted redness and a stinging/burning sensation on his toes. He did not report swelling, heat, stiffness, or flare-ups. He used orthotic inserts for assistance, although he noted poor results. He further noted that the post-operative calluses had no effect on feeding, toileting, and grooming; mild effect on traveling and dressing; moderate effect on chores, shopping, and bathing; and severe effect on exercise, sports, recreation, and driving. He did not report any time lost from working in a train yard. Upon examination, the VA examiner reported that the calluses did not manifest in objective evidence of painful motion or weakness. However, the Veteran had objective evidence of tenderness under the fifth metatarsal head on the left foot and evidence of abnormal weight bearing. The examiner reported that digits 2, 3,4, and 5 were in satisfactory position and there was no pain with range of motion, although toes 3,4, and 5 had sharp pain. The examiner further noted that it is possible there is an osseous prominence plantar laterally on the fifth metatarsal head. Moreover, although the Veteran evidenced an antalgic gait, this was due to a recent surgery on his right foot and ankle and not due to the left foot calluses. The Veteran was afforded another VA examination in July 2011. He continued to report pain when standing, walking, and at rest as well as numbness. He did not report swelling, heat, redness, stiffness, fatigability, or lack of endurance. He also did not use assistive devices for ambulation. He reported that the calluses had no effect on feeding or grooming; mild effect on traveling, bathing, dressing, and toileting; moderate effect on chores, shopping, recreation, and driving; and severe effect on exercise and sports. He noted time loss of less than 1 week of work due to the foot pain. Upon examination, the VA examiner reported the absence of painful motion, instability, and swelling. However, the Veteran evidenced mild tenderness of the fifth metatarsal head on the left foot and abnormal weight bearing. The examiner indicated adequate anatomic alignment and no sign of callus formation related to clawtoe. The Veteran had callus formation under the fifth metatarsal head on the foot's lateral edge. The Veteran was provided a VA examination in December 2014. He reported a lightning like pain in his left foot as well as flare-ups that limited weight-bearing. He further reported functional loss or impairment manifested by pain that affected weight-bearing activities. Upon examination, the Veteran did not report pain but the examiner noted that repeated use exacerbated symptoms. There were no deformities, calluses, or tenderness. The Veteran did not use any assistive devices for ambulation. The examiner reported that the Veteran would have difficulty with prolonged weight-bearing activities. The Veteran was afforded a VA examination in March 2016. He continued to report lightning like pain as well as pain with weight-bearing and at rest. He did not use orthotics. He had flare-ups that limited activities. Upon examination, there were no findings of pain, although the examiner noted functional loss with pain on weight-bearing and nonweight-bearing. VA treatment records also document treatment for the Veteran's left foot pain. However, a July 2011 VA X-ray report revealed an impression of no acute fracture, dislocation or destructive bone lesion; normal bone mineralization; and minor degenerative changes involving the first metatarsophalangeal joint. The Veteran continued his report of symptoms associated with his post-operative calluses of the left foot at the November 2010 Board hearing. Specifically, the Veteran testified that has a lot of discomfort in his foot such as pain and burning sensation which causes difficulty standing for long periods of time and he has to adjust his gait. He also had more pain with weightbearing and could not play sports. He further testified that he used orthotic inserts and took ibuprofen for pain relief. He reported that he had only missed 4 days of work in the past 15 years, although he stated that he could not afford to miss work and endured foot pain. Analysis There is no specific Diagnostic Code for rating calluses. It may be rated by analogy under 38 C.F.R. § 4.118, Code 7819 for benign skin neoplasm. However, the Board finds a higher rating is not warranted by rating the callus by analogy to scars. The calluses do not affect the head, face, or neck. Additionally, the evidence does not suggest that either callus is deep, painful, causes limited motion, result in functional loss, or affects an area exceeding 77 square centimeters. See the March 2016 VA examination report. The Board further finds a higher rating is not warranted by rating the callus by analogy to impairment of function under Diagnostic Code 5284. Specifically, the Board finds the calluses have not resulted in overall functional impairment of the left foot that more nearly approximates moderately severe than moderate. There is no medical finding of more than moderate impairment due to the post-operative callus of the left foot. Although there is evidence of abnormal gait, the abnormality is linked to the surgery on the Veteran's right foot and ankle, and there is no clinical evidence of impairment of posture or gait due to the callus. See the December 2007 VA examination report. While there is evidence of abnormal weight bearing, there are no findings of limitation of motion of the left foot or ankle associated with the callus, and the pain and tenderness on weight-bearing and nonweight-bearing are considered in the current evaluation. Although the Veteran competently reports pain and functional impairment of the feet and of walking and standing, he did not report any effect on feeding, toileting, and grooming and further reported only mild effect on traveling and dressing as well as moderate effect on chores, shopping, and bathing. Moreover, the VA examination reports show that the Veteran did not use assistive devices for ambulation other than orthotics. Further, the evidence indicates normal anatomic alignment with respect to the left foot. The Board also reiterates the July 2011 VA X-ray which revealed essentially normal findings other than minor degenerative changes involving the first metatarsophalangeal joint. As such, the Board finds that the Veteran's post-operative calluses of the left foot are manifested by no more than moderate impairment. In evaluating the Veteran's level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. During the period under consideration, the Veteran complained of pain, swelling and limitations on strenuous physical activity, including walking and running, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The medical evidence, in particular the VA examination reports, have associated these symptoms to the Veteran's post-operative calluses of the left foot. Further, these symptoms are included in the basis for the 10 percent rating. Therefore, these factors, and their resulting functional limitation, are fully contemplated by the current 10 percent rating. The Board finds the current rating encapsulates the Veteran's current symptoms. 38 C.F.R. §§ 4.40, 4.45, 4.59. Accordingly, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for post-operative calluses of the left foot during any period under consideration. Neither the Veteran nor his representative has raised any issue pertaining to the matter of extraschedular consideration, nor have any other issues pertaining to extraschedular consideration been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. Ap. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a disability rating in excess of 10 percent for post-operative calluses of the left foot is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs