Citation Nr: 1802804 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-21 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a compensable rating for service-connected plantar warts with intractable plantar keratosis of the left foot. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2002 to June 2010 in the United States Army. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By way of procedural background, the Veteran was granted service connection for plantar warts of the left foot in a February 2013 rating decision. Subsequently, the RO in a November 2015 rating decision recharacterized the Veteran's service connected disability as plantar warts with intractable plantar keratosis of the left foot and continued the noncompensable disability rating. This matter is now before the Board for appellate consideration. In June 2017, the Veteran testified before the undersigned Veterans Law Judge via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. The issue of entitlement to an initial rating in excess of 10 percent for plantar warts with intractable keratosis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's plantar warts with symptomatic plantar keratoma located at the sub-third metatarsophalangeal joint (MPJ) of the left foot productive of pain that impairs the Veteran's ability to stand and walk. 2. Pes planus is secondary to the plantar wars with symptomatic plantar keratoma. CONCLUSIONS OF LAW 1. Resolving any reasonable doubt in favor of the Veteran, the criteria for an initial 10 percent rating for plantar warts with symptomatic plantar keratoma located at the sub-third MPJ of the left foot are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7804, 7899 (2017). 2. The criteria for a separate 10 percent rating for pes planus as secondary to plantar warts with intractable plantar keratosis of the left foot are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Board limits its discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Further, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference hearing in June 2017. The VLJ, during the June 2017 Board hearing, was in compliance with her duties as a hearing officer as outlined in Bryant v. Shinseki, 23 Vet. App. 488 (2010). Additionally, the Veteran has not alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2). II. Pertinent Laws and Regulations for Increased Ratings and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Turning to the case at hand, the Veteran is currently service-connected for plantar warts with intractable plantar keratosis of the left foot, which has been evaluated as noncompensable disability, effective since June 9, 2010. The Veteran is seeking compensable rating. The Veteran's service connected plantar warts with intractable plantar keratosis of the left foot is evaluated under 38 C.F.R. § 4.118, DC 7899-7820 (2017). DC 7820 provides that disabilities evaluated under that DC are to be rated as disfigurement of the head, face, or neck under DC 7800, as scars under DCs 7801-7805, or as dermatitis under DC 7806, depending on the predominant disability. 38 C.F.R. § 4.118, DC 7820 (2017). The Veteran's February 2007 service treatment records showed a diagnosis of, and treatment for, porokeratosis plantaris with a provisional diagnosis of plantar warts, tinea pedis of the left foot. The Veteran was afforded a VA general medical examination in June 2011. He reported that since service he had treated a callus on the bottom of the left foot with a pumice stone. He reported a chronic, throbbing-type pain in the front sole area of the left foot with pain, which he rated as 3 out of 10, and flare-ups of pain rated an 8 out of 10 ten. Aggravating factors were standing and walking greater than 20 minutes. On examination, he had full range of the ankles and metacarpals. There was no shoe breakdown or unusual shoe wear. He ambulated six yards without limp or assistive device. He had mild out toeing bilaterally at 10 degrees. Diagnosis was left foot plantar warts. It was noted that the Veteran had pain, redness, swelling, fatigability, and lack of endurance. VA podiatry notes during 2012 and 2013 show left foot treatment, debridement, and orthotics. The Veteran underwent a VA outpatient podiatry consultation for a painful lesion the plantar aspect of the left forefoot in May 2015. Evaluation was positive for tenderness in direct compression of the keratotic lesion, measuring 0.5 cm in size to the sub-third MPJ bilateral. Neuromuscularly, the third metatarsal of the left foot was more plantar flexed than the right. Assessment was intractable plantar keratosis with third sub-third MPJ left foot, symptomatic. The plan was to debride the lesion. The Veteran was advised on proper foot care and shoe gear, and orthotics were ordered. According to a November 2015 VA examination report, the examiner clarified that the Veteran's left foot diagnosis of intractable plantar keratosis of the left foot was a progression of the previously service-connected plantar warts on the left foot. The Veteran's complaint was noted as recurrent, painful hard callus growth to the bottom of the foot. The Veteran's VA podiatrist summarized the Veteran's disability picture in a May 2017 statement. It was noted that he had been treating the Veteran on a biannual basis for peripheral keratomas and flat feet. The doctor stated that despite medications, alternative foot gear and accommodative foot padding, the Veteran reports continued persistent foot pain. When reasonable doubt is resolved in the Veteran's favor, a 10 percent rating is warranted for the Veteran's plantar warts with intractable keratosis of the left foot for the entire rating period on appeal. As noted above, disabilities evaluated under DC 7820 are to be rated as disfigurement of the head, face, or neck, as scars, or as dermatitis under, depending on the predominant disability. As the Veteran's disability is contained to his feet, there is no basis upon which to rate the condition based on disfigurement of the head, face, or neck under DC 7800. In determining whether to rate the Veteran's plantar warts with intractable plantar keratosis as scars or as dermatitis, the Board notes that the Veteran's actual disability, which is essentially calluses of the feet, does not fit squarely into either category. Thus, the Board will evaluate the Veteran under the criteria more beneficial to the Veteran. However, the Board finds that the assignment of an initial rating of 10 percent is warranted when the Veteran's plantar warts with intractable plantar keratosis are evaluated in accordance with the criteria applicable to rating scars under DC 7804. Specifically, although the Veteran's plantar keratomas are not in fact scars themselves, they have been noted to be painful, as evidenced in outpatient notes throughout the appeal period. Thus, the Board finds it appropriate to rate the Veteran's disability by analogy under the criteria set forth in DC 7804, which pertains to painful or unstable scars. Specifically, a 10 percent rating is warranted for one or two scars that are unstable or painful. Given the Veteran's self-reported history, the notations of foot pain throughout the record, and the VA podiatrist's notation that the left foot disability shows mild callosity and that palpation of the Veteran's plantar keratomas produces pain, the Board finds that an initial rating of 10 percent is warranted in accordance with the criteria set forth in DC 7804. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). For the foregoing reasons, an initial 10 percent rating is warranted for plantar warts with intractable plantar keratosis of the left foot. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to a rating higher than 10 percent is discussed in the remand portion below. ORDER Entitlement to an initial 10 percent rating for plantar warts with symptomatic plantar keratoma located at the sub-third MPJ is granted, subject to the laws and regulations governing the payment of monetary benefits. A separate 10 rating for pes planus as secondary to plantar warts is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND As determined above, the evidence currently of record is sufficient to warrant an initial 10 percent rating for the Veteran's left foot disability under 38 C.F.R. § 4.118, DC 7899-7804, and a separate 10 percent rating for secondary pes planus. However, to properly assess whether a rating even higher than 10 percent is warranted, VA should afford the Veteran a foot examination for compensation purposes as he has yet to undergo such an examination. The award of service connection was based in part on a VA general medical examination as opposed to a specific examination of the feet. A November 2015 VA examination diagnosed the Veteran with intractable plantar keratosis of the left foot and found that it was a progression of the previously service-connected plantar warts on the left foot; however, the November 2015 VA examination did not evaluate of the current severity of the left foot disabilities under all the applicable DCs. For these reasons, an updated examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Moreover, the Veteran contends that his left foot disability has since worsened. See June 2017 Board hearing transcript. Specifically, he reports his current symptoms include multiple scars, numbness, callouses, redness, bone damage, and pain. Lastly, any outstanding VA records should be obtained and associated with the claims file. The most recent VA treatment records of record are from 2015 along with a May 2017 letter from the Veteran's VA podiatrist. The records currently associated with the claims file do not appear to be complete, as the records indicate that the Veteran is treated at VA for the left foot disabilities bi-annually. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current severity of the service-connected left foot disabilities, to include plantar warts with intractable keratosis of the left foot with secondary pes planus. The examiner must review all pertinent records associated with the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is asked to address the following: (a). Elicit from the Veteran all signs and symptoms of the service-connected left foot disabilities. Specific attention is called to the Veteran's contentions that current symptoms of the left foot disabilities include pain, scarring, numbness, redness, bone damage, and recurrent callouses, which cause additional functional loss. See June 2017 Board hearing. (b). Assess the number and severity of any scars on the left foot from removal of callouses and/ or plantar warts, and describe whether there is any impairment associated with the scarring, whether the scars are tender to palpation or unstable, and the approximate measurements of the scars. (c). Obtain information from the Veteran (or the treatment records) as to the frequency, duration, characteristics, severity, and functional loss during repetitive use or during any left foot flare-ups. **If the examiner is unable to provide such an opinion without resorting to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). A complete rationale should be provided. 3. Thereafter, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with an SSOC and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs