Citation Nr: 1730666 Decision Date: 08/01/17 Archive Date: 08/11/17 DOCKET NO. 10-08 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for a plantar wart at the fourth metatarsal of the left foot (plantar wart). 2. Entitlement to service connection for lumbar spine disability, to include as secondary to service-connected disability of the right shoulder injury residuals or left foot plantar wart (lumbar spine disability). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1974 to March 1979 in the United States Air Force, from September 1980 to March 1983 in the United States Navy and from March 1984 to January 1993 in the United States Navy. These matters comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied entitlement to the benefits currently sought on appeal. In March 2015, the Veteran provided testimony at a videoconference hearing before the undersigned. A transcript of the hearing is of record. In July 2015 and April 2016, the Board remanded the Veteran's claims for further development. As discussed below, that development has been completed. FINDINGS OF FACT 1. The Veteran's plantar wart has not caused moderately severe or severe impairment of feet function. 2. The Veteran's lumbar spine disability is not causally or etiologically related to active service, and is not caused or aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for plantar wart are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 7819-5284 (2016). 2. The criteria to establish entitlement to service connection for a lumbar spine disability, to include secondary to service-connected disabilities, have not been met. 38 U.S.C.A. §§1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). I. Increased Rating for Plantar Wart Disability ratings are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 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 (2016). The Veteran's service-connected plantar wart is evaluated under Diagnostic Code 7819-5284, and has been assigned a 10 percent rating, effective January 30, 1993. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2016). Diagnostic Code 7819, for benign skin neoplasms, is rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7819 (2016). Under Diagnostic Code 5284, a 10 percent rating is assigned for moderate foot injury. A moderately severe foot injury warrants a 20 percent rating. A severe foot injury warrants a 30 percent rating. A Note to Diagnostic Code 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Words such as "mild," "moderate," "severe," and "pronounced" are not defined in the Rating Schedule or in the regulations. Consequently, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2016). In various medical treatment notes between April 2007 and May 2014, the Veteran was diagnosed with intractable plantar keratosis (IPK). During each visit, the physician debrided the IPK, and instructed the Veteran to continue wearing inserts, moisturize, and use of a pumice stone, emory board, or file for daily care. He was instructed on the importance of maintaining foot care, especially in light of his diabetes diagnosis, and given education on how to do so. Each time, it was noted that the Veteran expressed good understanding of the instructions. Additionally, he scored a Level 0 (Normal Risk) or Level 1 (Low Risk) on foot risk exams. Level 0 (Normal Risk) is described as normal sensation and circulation; no deformity; and no ulceration or history of amputation. Level 1 (Low Risk) is described as decreased sensation or circulation; no deformity; and no ulceration or history of amputation. In September 2007, the Veteran filed an informal increased rating claim, and stated that his left foot condition had worsened. In December 2007, the Veteran underwent a Compensation & Pension Exam. The VA examiner diagnosed him with residuals, plantar's wart, left foot fourth metatarsal. She also found that he had hyperkeratotic tissue noted sub fourth metatarsophalangeal joint left foot with central core approximately 0.3 centimeters. She noted that the condition was constant, that he used carbamide lotion daily, had an insert for his left shoe, and that his sneakers show wear at the heel of the foot, with no particular wear on the toe area of his shoes. During the March 2015 Board hearing, the Veteran testified that his plantar wart was painful and that he required the use of a shoe insert with an area cut out for the wart. He testified that he must always wear the shoe insert when working, as "[his] job requires [him] to be on [his] feet quite a bit." See March 2015 Hearing Transcript, p.8. He testified that he did not need the inserts in situations where shoes were not necessary, like showering, as long as the plantar wart was shaved. Additionally, he testified that the plantar wart felt like a callus, and if he stepped on an object, the pain "shoots up [his] leg." Id. He testified the level of pain was a seven out of ten, ten being the worst; and that he altered the way he walked to ensure that he would not hurt himself. Pursuant to the July 2015 Board remand, the Veteran was afforded a VA examination in October 2015. The VA examiner diagnosed the Veteran with plantar wart with surrounding callus overlying the distal left fourth metatarsal. The VA examiner stated that the Veteran treated the plantar wart by shaving it down and with liquid nitrogen. Additionally, the VA examiner confirmed the Veteran wore shoe inserts. He opined the Veteran's skin condition did not have any negative functional impact on the Veteran's ability to work. In various medical treatment notes between February 2015 and February 2016, the Veteran was examined for routine follow-up exams. During each visit, his IPK was debrided. In February 2016, he was evaluated as a Level 1 risk on the foot risk exam. Pursuant to an April 2016 Board remand, the Veteran was afforded another VA examination in December 2016. The Veteran reported to the VA examiner that he had issues with his left foot, and that he wore shoe inserts. He reported that if he did not shave the callus on the ball of his left foot, then the pain got worse. He reported to the VA examiner that he went to the VA to get his callus shaved periodically, and that the shoe inserts negated the need to shave the callus as often. The Veteran reported that he felt he had altered his gait, due to the plantar wart, and this had resulted in lateral hip pain and periodic anterior groin pain. He reported that he also had swollen knees and worsening hip pain if he stood for too long. The VA examiner noted that there was a callus on the Veteran's plantar surface of his left foot, around the distal metatarsal of the fourth toe. He observed that the Veteran avoided putting the left foot metatarsals down when he moved from the chair to the exam table. The VA examiner further observed that when the Veteran wore shoes, he walked with a slight limp while toeing off of the left foot; and that when the Veteran had difficulty putting his sock and shoe back on when sitting and bending at the hip. In order to put his toes into his sock, the Veteran had to stand and put his left foot up on exam table; then he had to sit and slide his foot into the shoe to tie the shoe. The VA examiner noted the Veteran had difficulty rising from the chair, and indicated that his right hip was in pain when doing so. The VA examiner noted the Veteran used no assistive devices to walk. The VA examiner opined that although the Veteran favored the left foot slightly with a limp during the exam, his medical history and exam findings were indicative that his hips were more likely than not the cause of the Veteran's complaints. In an addendum opinion, also from December, the VA examiner further opined that "changes in gait, arthritis, arthralgias, and other joint conditions are often multifactorial." See December 5, 2016 Skin Diseases Disability Benefits Questionnaire Addendum, p. 1. The VA examiner opined that it is as likely as not that the Veteran's current limp was due in part to the plantar wart, however, it is less likely than not that the plantar wart was the one fact that accounted for his other complaints and hip arthritis. In this case, the Board finds that the Veteran's plantar wart has more nearly approximated the 10 percent rating for the period on appeal. The Veteran has received treatment for his plantar wart at VA medical centers. Each visit was generally a routine appointment to check up on his plantar wart, and not a visit for special treatment or hospitalization. General treatment included debriding the callus, and instructing the Veteran on daily care of his feet, including use of an emery board or pumice stone, which he received from the VA medical center. The Veteran was also fitted for and received orthotics to wear in his shoes. Additionally, when assessed under the foot risk exam, the Veteran scored a Level 0 (Normal Risk) or Level 1 (Low Risk). The Board acknowledges the Veteran's complaint to the December 2016 VA examiner that he felt his plantar wart had altered his gait, resulting in hip pain and periodic anterior groin pain. The Board notes that the December 2016 VA examiner observed the Veteran having a slight limp while toeing off of the left foot, and that the Veteran had difficulty putting his socks back on. However, the same VA examiner also opined that the Veteran's medical history and exam findings were indicative that his hips were more likely than not the cause of the Veteran's complaints, not his plantar wart. The Board further notes that the Veteran's employment as a nurse requires him to stand on his feet for long periods of time. However, in no VA examination or note is there reference that his plantar wart prevents him from being able to fulfill this job duty. In fact, the October 2015 VA examiner opined that the Veteran's plantar wart did not have any negative functional impact on the Veteran's ability to work. As a consequence, the record does not reflect moderately severe or severe impairment of foot function contemplated by a 20 percent or higher schedular rating. II. Service Connection for Lumbar Spine Disability The Veteran seeks entitlement to service connection for a lumbar spine disability, including secondary-service connection. Service connection is granted for disability resulting from disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Additionally, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a) (2016). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The record shows that the Veteran has current diagnoses for lumbar spine disability, which he attributes to his service-connected post-operative residuals of a right shoulder injury. See October 2015 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ), p. 2. Accordingly, the requirements for Wallin elements (1) and (2) have been met. As such, the remaining issue is to determine whether the current disability is related to a service-connected disability. The Board finds that the weight of the competent and credible evidence is against a finding of secondary service connection for the Veteran's lumbar spine disability. During the March 2015 Board hearing, the Veteran testified that he began to notice pain on the right side of his spine, in the scapula area. He testified that his lumbar spine pain level was an eight or nine, with ten being the worst. The Veteran testified that his lumbar spine disability felt as if it is worsening, and the pain increased when he used his right arm. He testified that he thought "all of it was due to [his] shoulder." Id., p. 11. Additionally, the Veteran testified that the lumbar spine pain "definitely" changed the way he walked, and that 10 or 11 years ago, a chiropractor had told him that he was "all out of whack" due to his right side spine pain and left foot plantar wart. Id. He stated that his back pain started within two to three years of hurting his shoulder. He also testified that it was possible his back pain may have started earlier than two to three years, but the pain medication he took for his shoulder could have masked the pain. The Board notes that while the Veteran is competent to testify that he believes his lumbar spine disability is a result of his right shoulder injury, and the Board finds this testimony credible, the Veteran is not competent to opine as to the etiology of his current diagnosis or make the necessary "nexus" (connection) determination. Moreover, no competent medical evidence on file attributes the Veteran's current diagnosis to right shoulder injury, but rather to the natural aging process. In October 2015, the VA examiner conducted a thorough examination and reviewed the Veteran's records. He diagnosed the Veteran with degenerative arthritis of the spine. The VA examiner stated that the Veteran "was claiming service connection for a thoracolumbar spine condition that is at least as likely as not incurred in or caused by or during service." See October 2015 Back (Thoracolumbar Spine) Conditions DBQ, p. 7. In support of his opinions, the VA examiner noted that the Veteran's service treatment records are silent for any back injuries or conditions, and he was not found to have LS spine arthritis until 13 years after service. The VA examiner opined that it is less likely than not that the Veteran's lumbar spine disability is related to military service; and also less likely than not that his lumbar spine disability was caused or aggravated by the Veteran's service-connected residuals of right shoulder injury because the conditions surrounding the Veteran's right shoulder injury would not lead to the development of spinal arthritis. In December 2016, the same VA examiner wrote an addendum regarding his opinion on secondary causation. The VA examiner reasserted his opinion that "it is less likely than not that this Veteran has any thoracolumbar back conditions that were caused or aggravated by the Veteran's service-connected residuals of right shoulder injury because his service-connected right shoulder conditions would not lead to spinal arthritis." See December 2016 Addendum. He went on further to opine that none of the Veteran's other service-connected disabilities would have caused or aggravated the arthritis, which was found to be mild/minor on x-rays. The VA examiner concluded with the opinion that the Veteran's lumbar spine disability was most likely related to the aging process. The Board additionally notes that there is no plausible anatomic explanation that would link the Veteran's lumbar spine disability to any in-service injury. Although VA treatment records show treatment for lumbar spine symptoms, they do not note that there is a nexus between the Veteran's lumbar spine disability and any in-service injury. As such, service connection on a direct basis must be denied. In consideration thereof, and absence any competent medical evidence to the contrary, the Board finds service connection for lumbar spine disability must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In reaching the above conclusion, 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 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A rating in excess of 10 percent for plantar wart is denied. Service connection for lumbar spine disability is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs