Citation Nr: 1803374	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  12-25 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California 


THE ISSUE

Entitlement to an initial a compensable disability evaluation for calluses and warts of the soles of the feet.


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

J. Connolly, Counsel



INTRODUCTION

The Veteran had active service from May 1970 to May 1972. 

This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Oakland, California, Regional Office (RO) which established service connection for calluses and warts on the soles of the feet; assigned a noncompensable evaluation for that disability; and effectuated the award as of October 15, 2010. 

In August 2015, the Board remanded this issue which is the only matter currently certified to the Board on appeal.


FINDING OF FACT

The Veteran's calluses and warts of the feet affect less than 10 percent of the entire body, and do not require systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during a relevant 12-month period.


CONCLUSION OF LAW

For the entire initial rating period, the criteria for an initial 10 percent rating for calluses and warts of the feet are met.  38 U.S.C.§ 1155 (2012); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.118, Diagnostic Codes 7899-7820, 7806 (2017). 



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA) 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and information.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case.  The Veteran has not alleged any notice or development deficiency during the adjudication of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

Rating

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  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 reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.  In Fenderson, the Unites States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder.  In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126.  Hart appears to extend Fenderson to all increased rating claims.

In April 2011, the Veteran was afforded a VA examination.  It was noted that the Veteran had bilateral foot warts.  He had no work limitation.  These were located to the soles of the feet.  Currently, he reported pain.  The pain was sharp, achy, constant, and rated 7/10.  There was associated fatigue, instability, weakness, and lack of endurance, but no stiffness, heat, locking, swelling, and redness.  This was worse with walking and improved with rest, trimming, and salicylate cream.  There was no complication from this medicine.  He used a shoe insert with relief.  He had no limitation with activities daily living.  There were no flare ups or incapacitating episodes.  The Veteran did not have pes planus or cavus.  There was no laxity, effusion, and pain.  There were calluses to the bilateral hallux and 4th toes at the soles.  There were multiple 1-2 mm punctate lesions that were flat lesions located on the soles of the feet.  These were tender.  There was hallux valgus deformity.  There was normal tactile sensation bilaterally.  Passive range of motion did not elicit tenderness.  There was no tenderness to deep palpation to his soles.  There was normal alignment of the Achilles tendons.  Active range of motion of bilateral ankle joints was as follows: dorsiflexion 20 degrees, plantar flexion 30 degrees.  There was absence of pain, weakness, fatigability, incoordination, and instability.  The examination was repeated three times with no loss of function with the three repetitions.  The assessment was calluses and warts to the soles of the feet.  In a September 2011 addendum, the examiner indicated that the total body surface area affected was less than ten percent. 

In May 2012, VA outpatient records noted that the Veteran had bilateral plantar multiple calluses/verrucae.  On the right foot, there was a lesion of the sub right third digit distally, right hallux and second metatarsal head.  On the left foot, there was a hyperkeratosis of sub 4th digit distally, left hallux and 4th metatarsal head.  There were bilateral posterior heel calluses.  The next month, the Veteran complained of concern for a big toe callus.  The Veteran subsequently underwent hammertoe correction of the right foot.  

In November 2012, it was noted in the post-surgical treatment records that the Veteran also had a callus of the right foot.  

In December 2014, the Veteran was afforded a VA examination.  It was noted that since his last rating evaluation, he had right hammertoe surgery (2nd-5th) toes.  He had debrided calluses as he was complaining of forefoot pain and calluses activity.  He had developed calluses despite use of orthotic devices.  Of note, he was scheduled for further hammertoe of the contralateral foot.  He had retired as a school teacher in September 2014.  His calluses had limited him from prolonged standing and walking.  He had no other activity of daily living restrictions.  He wore orthotic insoles for relief.  The examiner stated that the Veteran did not have pain on use of the feet; pain on manipulation of the feet; or swelling on use.  He did not have extreme tenderness of plantar surfaces on one or both feet.  He did not have decreased longitudinal arch height of one or both feet on weight-bearing.  He did not have objective evidence of marked deformity of one or both feet.  He did not have marked pronation of one or both feet.  The weight-bearing line did not fall over or medial to the great toe of either foot.  There was not a lower extremity deformity other than pes planus, causing alteration of the weight-bearing line.  The Veteran did not have "inward" bowing of the Achilles tendon (i.e., hindfoot valgus, with lateral deviation of the heel) of one or both feet.  The Veteran did not have marked inward displacement and severe spasm of the Achilles tendon (rigid hindfoot) on manipulation of one or both feet.  Hammertoes of both feet were noted.  The Veteran had palpable bilateral corns at the 1st proximal metatarsophalangeal and 2nd distal metatarsophalangeal joints.  So there were 4 joints involved of both feet (2 joints each foot).  Any scarring was noted to not be painful or unstable; have a total area equal to or greater than 39 square cm (6 square inches); or as located on the head, face or neck.

VA outpatient records also documented care for bunions and hammertoes, but those conditions are not service-connected.  
 
The Board remanded this case for the Veteran to be afforded a VA examination in order to assess the current level of disability of his callus and wart skin disorders.  It was noted that although the Veteran was last afforded an examination of the feet in December 2014, this examination did not indicate whether there were any current warts nor did it describe the body surface area affected by the condition or treatment required for the condition.  Accordingly, another examination was ordered to be afforded to the Veteran.  However, the Veteran did not report for the examination and did not provide any reasoning.  When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655.  When a veteran fails without good cause to report for a VA examination requested by VA in conjunction with a claim, VA is not obliged to attempt to provide another.  The issue on appeal is a downstream higher rating claim from the initial service connection claim.  Thus, the Board must decide the claim based on the evidence of record since the Veteran has not presented good cause.

The Veteran's skin disability, diagnosed as calluses and warts of the feet, is currently rated under the hyphenated Diagnostic Code 7899-7820 as non-compensable.  The disabilities are not specifically listed in the Rating Schedule.  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is designated by using the first two digits of the diagnostic code for the most closely analogous disability, followed by the terminal digits "99" connoting an unlisted condition.  See 38 C.F.R. § 4.27.  Diagnostic Code 7820 contemplates infections of the skin not listed elsewhere, and specifically includes viral infections; therefore, the hyphenated Diagnostic Code 7899-7820 is an appropriate diagnostic code under which to rate the Veteran's skin disabilities.

Diagnostic Code 7820 provides that infections of the skin not listed elsewhere in the Rating Schedule are to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability.  See 38 C.F.R. § 4.118.

Under Diagnostic Code 7806, a non-compensable (zero percent) rating is assigned when less than five percent of the entire body area or less than five percent of the exposed body area is affected, and; no more than topical therapy required during the preceding 12-month period.  A 10 percent rating is warranted for dermatitis or eczema affecting five to 20 percent of the entire body area or five to 20 percent of exposed areas; or intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs, are required for a total duration of less than six weeks during the preceding 12-month period.  A 30 percent rating is warranted for dermatitis or eczema affecting 20 to 40 percent of the entire body area or 20 to 40 percent of exposed areas, or systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the preceding 12-month period.  A 60 percent disability rating is warranted for dermatitis or eczema, affecting more than 40 percent of the entire body area or more than 40 percent of exposed areas, or constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the preceding 12-month period.  38 C.F.R. § 4.118.

The Veteran has been assigned a non-compensable rating.  The Veteran's feet conditions warrant a higher 10 percent rating because they affect less than 10 percent of the entire body, but since they do not affect a higher percentage and do not require systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the preceding 12-month period, a higher rating is not warranted.  The Veteran's medication has consisted of salicylate cream.  As noted, any information to be gleaned from an additional examination could not be obtained because the Veteran did not report for the examination.  The Court has held, however, that VA's "duty to assist is not always a one-way street."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence.

In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107(a) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, the evidence supports a 10 percent rating.


ORDER

Entitlement to an initial 10 percent rating for calluses and warts of the soles of the feet is granted, subject to the law and regulations governing the payment of monetary benefits.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs