Citation Nr: 1805895	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  13-05 453	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

1.  Entitlement to an initial rating in excess of 10 percent for right foot hyperkeratosis prior to June 4, 2014, and a rating in excess of 20 percent thereafter.

2.  Entitlement to an initial rating in excess of 10 percent for left foot hyperkeratosis prior to June 4, 2014, and a rating in excess of 30 percent thereafter.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Andrew Mack, Counsel


INTRODUCTION

The Veteran served on active duty from July 1957 to October 1960. 

This appeal is before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  In September 2014, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge.  A transcript is included in the claims file.

The issue of an initial rating in excess of 10 percent for bilateral foot hyperkeratosis was remanded by the Board in February 2015.  In a November 2015 rating decision, the agency of original jurisdiction (AOJ) increased the Veteran's rating to 30 percent effective July 24, 2015.  

In a March 2016, the Board granted initial ratings of 10 percent each for right and left foot hyperkeratosis, prior to June 4, 2014; a rating of 20 percent for right foot hyperkeratosis beginning June 4, 2014; and a rating of 30 percent for left foot hyperkeratosis beginning June 4, 2014.  The Veteran appealed the decision, insofar as it did not award higher ratings, to the United States Court of Appeals for Veterans Claims (Court).  In a June 2017 Memorandum Decision, the Court remanded the case to the Board.

Additional evidence has been added to the record since the most recent certification of the appeal to the Board by the AOJ, but initial AOJ consideration of the evidence was waived by the Veteran's representative in December 2017.  See 38 C.F.R. § 20.1304(c).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  Prior to June 4, 2014, the Veteran's left and right foot hyperkeratosis disabilities each approximated moderate, but not moderately severe or severe, foot injury.

2.  Beginning June 4, 2014, his right foot hyperkeratosis approximated moderately severe foot injury.

3.  Beginning June 4, 2014, his left foot hyperkeratosis approximated severe foot injury.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 10 percent for right foot hyperkeratosis prior to June 4, 2014, and a rating in excess of 20 percent thereafter, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.118, Diagnostic Codes 5284, 7824 (2017).

2.  The criteria for an initial rating in excess of 10 percent for left foot hyperkeratosis prior to June 4, 2014, and a rating in excess of 30 percent thereafter, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.118, Diagnostic Codes 5284, 7824 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran 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).  The Board will address the concerns of the June 2017 Memorandum Decision below.

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.  Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's bilateral foot disability is currently rated under Diagnostic Code (DC) 5284, for functional loss of the foot due to injury.  Under DC 5284, moderate foot injury warrants a 10 percent rating, moderately severe foot injury warrants a 20 percent rating, severe foot injury warrants a 30 percent rating, and actual loss of use of the foot warrants a 40 percent rating.  38 C.F.R. § 4.71a, DC 5284.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

I.  Background

In its March 2016 decision, the Board provided a detailed factual background of this case, discussing the extensive medical history of the Veteran's foot conditions.  Again, the issue at that time was entitlement to an initial rating in excess of 10 percent for bilateral foot hyperkeratosis prior to July 24, 2015, and a rating in excess of 30 percent thereafter.  Based on that factual background, the Board found that initial separate ratings of 10 percent each for the Veteran's right foot hyperkeratosis and left foot hyperkeratosis were warranted prior to June 4, 2014, and, thereafter, that ratings of 20 percent for right foot hyperkeratosis and 30 percent for left foot hyperkeratosis were warranted.

The Board determined that, considering the record in its entirety and resolving reasonable doubt in the Veteran's favor, prior to June 4, 2014, each of the Veteran's hyperkeratosis disabilities of the foot reasonably approximated moderate, but not moderately severe or severe, foot injury.  Thus, separate ratings of 10 percent, but no greater, for hyperkeratosis of each foot were warranted under DC 5284.  The Board based its determination on its findings that, during this period, the Veteran's disability was productive of hyperkeratosis of each foot with eight to 10 lesions and two partial thickness ulcers with heme blebs, resulting in difficulty standing and walking and often pain on palpation, which was treated with regular debridement and topical medications.  It further based its determination on the fact that, during this period, there were no open lesions or interdigital macerations and muscle strength was full in the foot area.  

Regarding the period beginning to June 4, 2014, the Board determined the following:

Resolving reasonable doubt in the Veteran's favor, the Board finds that, for the period beginning June 4, 2014, a rating of 20 percent for the Veteran's right foot hyperkeratosis, and a rating of 30 percent for his left foot hyperkeratosis, is warranted.  Beginning on this date, the Veteran reported a worsening in his foot condition with more pain and bleeding and greater difficulty walking; he reiterated his report of a worsening at this time during his September 2014 Board hearing, testifying that, as a result of such worsening, the frequency of his foot treatments had increased and he had been given a walker.  Indeed, the record reflects that, as of this date, the Veteran was prescribed, and used, a walker for ambulation due to his foot disability, and that mild bleeding was noted.  Furthermore, beginning in October 2014, the Veteran has been treated for additional left foot hyperkeratosis manifestations of preulcerative lesions and recurring plantar ulcerations.  As noted by the July 2015 VA examiner, the Veteran's hyperkeratosis symptomatology resulted in pain on weightbearing and non-weightbearing, swelling, disturbance of locomotion, interference with standing, and lack of endurance; the examiner opined that the severity of right foot condition was "moderately severe," and of the left foot condition was "severe." 

Given the above, the Board finds that, as of June 4, 2014, the Veteran's right foot hyperkeratosis has approximated "moderately severe" foot injury, and that his left foot hyperkeratosis has approximated "severe" foot injury.  Thus, as of that date, a 20 percent rating for his right foot hyperkeratosis, and a 30 percent rating for his left foot hyperkeratosis, are warranted under DC 5284.

The Board further noted the Veteran's representative's argument in a December 2015 written brief that the Veteran's disability warrants a 60 percent rating under 38 C.F.R. § 4.118, DC 7824, as it "involves cutaneous and musculoskeletal involvement of the feet and requires the constant or near-constant use of medications for wound control."  However, the Board noted that the involvement of the Veteran's hyperkeratosis disability has never been noted to be generalized, but, rather, has consistently been noted to be localized to the plantar foot area, and has been specifically noted not have been productive of systemic manifestations such as such as fever, weight loss, or hypoproteinemia.  Also, the Veteran's medications have never involved any more than topical therapy, and have never involved any systemic medication such as immunosuppressive retinoids.  

In its June 2017 Memorandum Decision, the Court found "the Board's statement of reasons or bases deficient because the Board did not explain why the appellant's symptoms did not indicate a moderately severe disability warranting a 20% disability rating prior to June 4, 2014."  The Court noted that "[t]he rating schedule does not define 'moderate,' 'moderately severe,' or 'severe,' and that "the reasons-or-bases requirement does not mandate that the Board provide precise definitions for such undefined terms."  However, it nonetheless determined that "[a]side from listing symptoms that were present and absent, the Board did not explain why the number of lesions, partial-thickness ulcers, pain, and difficulty  standing and walking did not warrant a higher rating or what criteria the Board required to demonstrate a moderately severe or severe foot disability."  The Court reasoned that, "even assuming the Board appropriately determined that the appellant's foot disabilities worsened after June 4, 2014... The fact that the appellant's symptoms worsened after June 4, 2014, also does not mean that the severity of his disability before then was insufficient to warrant a higher disability rating."  It concluded that, "[a]ccordingly, because the Board's analysis provides no insight into why the appellant's disability was not commensurate with a moderately severe or severe disability prior to June 4, 2014, a remand is required."

II.  Analysis

The Board notes that words such as "moderate" and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just as contemplated by the requirements of the law."  38 C.F.R. § 4.6.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  

In Prokarym v. McDonald, 27 Vet. App. 307 (2015), the Court noted that the word "severe" as used in DC 5284 is not defined in the pertinent regulation, and that, "[i]n the absence of an express definition, words are given their ordinary meaning."  Prokarym, 27 Vet. App. at 310.  The Court noted that "[t]he ordinary meaning of 'severe' is 'very great [or] intense,' ... or 'of a great degree,'" and that it was used in DC 5284 "to indicate a very great or intense case of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific DC."  Id.  "In other words, 'severe' is a degree descriptor specific to the listed disability."  Id.  In that case, the Court was "not persuaded that the Board clearly erred when it determined that Mr. Prokarym would not be entitled to a 'severe' rating under DC 5284 nor that it failed to provide an adequate statement of reasons or bases for that determination," where the Board explained that, although the Veteran had "pronounced" flatfoot for rating purposes, "'the evidence does not support the conclusion that [his] bilateral plantar fasciitis with pes planus has resulted in a 'severe' level of impairment in each foot' under DC 5284."  The Board supported this determination by noting that "although Mr. Prokarym suffered from 'foot pain on use and with manipulation, as well as an indication of swelling on use and extreme tenderness of the plantar surface of both feet,' he had 'no characteristic calluses  . . . [or] marked deformity of the foot or lower extremity, other than pes planus, causing alteration of the weight bearing line.'"  Id. at 313.  (Court's emphasis).  

Initially, after again reviewing the record, the Board finds that beginning June 4, 2014, the Veteran's right foot hyperkeratosis approximated moderately severe foot injury and his left foot hyperkeratosis approximated severe foot injury for the same reasons it articulated in its March 2016 decision, reiterated above.  This portion of the Board's decision was not addressed by the Court in its June 2017 Memorandum Decision.  Again, beginning on this date, the Veteran's feet disabilities: resulted in a notably greater level of pain, greater difficulty walking, and mild bleeding; caused him to use a walker for ambulation; resulted in preulcerative lesions and recurring plantar ulcerations for the left foot; and were specifically assessed by the July 2015 VA examiner as "moderately severe" on the right and "severe" on the left.  The Board has also reviewed the medical treatment records and other evidence from April 2015 to the present, which reflects continuing treatment for the Veteran's feet conditions, and determines that the findings on such treatment have been consistent with findings at time of most recent July 2015 VA examination.  

Furthermore, the Board again finds that, prior to June 4, 2014, the Veteran's left and right foot hyperkeratosis disabilities each approximated moderate, but not moderately severe or severe, foot injury for reasons it attempted to explain in in its March 2016 decision.  During this period, as opposed to the later period discussed above, the Veteran's feet disabilities were manifested by notably less pain and less difficulty walking as repeatedly reported by the Veteran; lack of the need for a walker due to his disability, with muscle strength of the feet noted to be full; and no open lesions or interdigital macerations.  

The Veteran's feet disabilities during this period did not rise to the severity level they were beginning June 4, 2014, when they had significantly worsened in nature in severity in the ways described above, to the relative levels of moderately severe and severe; they did not approximate "a very great or intense" foot injury, or even a moderately "very great or intense" foot injury prior to June 4, 2014.  The Board finds its support for these conclusions at least as sufficient as that accepted by the Court in Prokarym.  

Again, while the Court's Memorandum Decision notes that "[t]he rating schedule does not define 'moderate,' 'moderately severe,' or 'severe,' and that "the reasons-or-bases requirement does not mandate that the Board provide precise definitions for such undefined terms," the Court nonetheless determined that the Board was required to articulate "what criteria the Board required to demonstrate a moderately severe or severe foot disability."  However, Board has no authority to establish criteria for a rating that is not listed in the rating criteria by regulation; the Board is not at liberty to rewrite VA's rating criteria.  See Drosky v. Brown, 10 Vet. App. 251, 255 (1997).

The Board also notes the lack of any further guidance or examples in the Memorandum Decision of the type of "criteria" the Board was to articulate for the various levels of foot disability not explicitly in the rating schedule, how the Board should establish criteria for moderately severe foot injury, or any case or instance where Board has previously done so or has been required to do so.  The Memorandum Decision cites the case of Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011).  In that case, the Court held that "the Board failed to provide an adequate statement of the reasons or bases for its finding that the appellant's skin condition was not 'exceptionally repugnant' when the Board's only explanation was the lack of that specific phrase in the medical opinions of record."  Buczynski, 24 Vet. App. at 224.  However, this is not the case here.  Moreover, in Buczynski, the Court specifically discussed subjective standards in the rating criteria such as "exceptionally repugnant," and indicated that a finding that a disability met such standard may be adequate where the finding is specifically supported by a recognition of the symptoms or conditions present that demonstrate that subjective standard: "For example, a skin condition that is essentially confined to the feet and ankles might still be considered 'exceptionally repugnant' if the appellant were wearing shorts or sandals, or was barefoot, or if he suffered from extensive oozing that seeped through his trousers, or if his condition created an odor that was repugnant despite the skin condition not being visible."  Id. at 228.  

Here, again, the determination that the Veteran's disabilities approximated the criteria for moderate foot injury prior to June 4, 2014, is supported by the Board's findings, described in detail above.  They approximated the criteria for moderately severe and severe foot injury, respectively, beginning June 4, 2014, based on the findings beginning that date, described in detail above.  

Whether any such determination is clearly erroneous given the facts of the case is for the Court to decide, and it should reverse the Board's decision should this be the case.  See Johnston v. Brown, 10 Vet. App. 80, 84 (1997).  The Court, moreover, is free to give direction in application of the undefined terms of DC 5284, what symptoms might meet the criteria for moderate or moderately severe foot injury in its view, etc., as in Buczynski, discussed above.  

Finally, in the Court's June 2017 Memorandum decision, it noted arguments by the Veteran's attorney "that the Board's determination that referral for extraschedular consideration was not warranted also lacks adequate reasons or bases and that the Board erred when it determined that the issue of entitlement to TDIU was not raised by the record."  However, the Court declined to address the arguments at that time.  

In its March 2016 decision the Board provided the following analysis regarding extraschedular consideration:

The Board has also considered referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1).  The Board recognizes and has considered the Veteran's difficulties and functional impairment caused by his right and left foot hyperkeratosis, both prior to and beginning June 4, 2014, including their combined effect, such as his foot pain, difficulty standing and walking, ulcerations, and continuous required treatment.  See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  However, such symptoms and impairment are adequately contemplated in the applicable criteria for each rating assigned.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Neither of the Veteran's disabilities has at any point reflected factors that constitute an unusual or exceptional disability picture given the level of disability contemplated in his assigned ratings. 

The Veteran's attorney, in an October 2016 brief to the Court, argued that such analysis was inadequate as it failed to offer any explanation for the Board's determination "beyond a cursory conclusion," and failed "to define the standards relied on in making its decision, as well as what evidence it relied on in determining that that the Veteran's disability was not unusual or exceptional in any way."

However, reading the above paragraph in the context of the Board's decision as a whole, the Board provided sufficient explanation that the Veteran's symptoms and functional impairment-which it discussed extensively earlier in the decision and briefly summarized in the above paragraph-did not render the Veteran's disability picture unusual or exceptional, given his ratings and the disability contemplated by the rating criteria.  The evidence relied on by the Board was clearly the extensive evidence identified, discussed, and analyzed throughout its March 2016 decision.  The standards relied on by the Board were those set forth in the regulation and case law cited by the Board: 38 C.F.R. § 3.321(b)(1) (the exceptional case where the schedular evaluations are found to be inadequate... A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards); and Thun v. Peake, 22 Vet. App. 111, 115 (2008) (The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate...  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).  Notably, moreover, the Veteran's attorney identified no evidence, symptoms, or impairment whatsoever not adequately contemplated by the rating criteria or ignored by the Board in its analysis.

Regarding the assertion "that the Board erred when it determined that the issue of entitlement to TDIU was not raised by the record," in its March 2016 decision the Board made the following determination:

Finally, while the Veteran has not been working during the period on appeal, there has been no assertion or evidence that he is unemployable due to his service-connected disability.  In this regard, during his September 2014 Board hearing, the Veteran testified that one of the reasons that his feet began hurting more later in life, after he retired, was that when working he "had a job where [he] could sit a lot of time so it didn't bother [him]."  Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

The Board finds this analysis to have been accurate.  However, to the extent that the Veteran's attorney, in the October 2016 brief, raises the issue of TDIU in this case, the Board will address it. 

The Veteran's attorney, in the October 2016 brief, essentially argues that the Veteran's feet disabilities on appeal "would likely preclude even sedentary work," on the basis that "the Veteran relied on constant use of a walker to ambulate and a [July 2015] VA examiner concluded his condition would affect his functional capabilities."   In this regard, the July 2015 VA examiner, when asked whether the Veteran's feet disabilities would "impact his or her ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.)," stated that the functional impact of the Veteran's disability would be "decreased standing" and "decreased mobility."  The examiner did not in any way state or imply that the Veteran would be unable to work in sedentary employment, including the Veteran's former employment which, according to the Veteran, allowed him to sit often so that his feet would not bother him.  

The Board recognizes the functional impairment, including occupational impairment, resulting from the Veteran's feet disabilities, including "decreased standing" and "decreased mobility," which it discussed above in determining the ratings for his feet.  Such impairment, however, is contemplated in-and, indeed, is the reason for- his schedular ratings and commensurate compensation.  See 38 C.F.R. § 4.1 ("The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability").  Neither the assertions made in the October 2016 brief, including the fact that the Veteran now uses a walker, nor anything else in the record has otherwise shown that, given his occupational experience and the type of employment for which the Veteran would be qualified-which, by the Veteran's own testimony, is the type where he could sit a lot of time so that his feet would not be bothered-the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected feet disabilities.  See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

Accordingly, separate initial ratings of 10 percent, but no greater, for right and left foot hyperkeratosis are warranted prior to June 4, 2014.  Also, beginning June 4, 2014, a rating of 20 percent, but no greater, for right foot hyperkeratosis is warranted; and a separate rating of 30 percent, but no greater, for left foot hyperkeratosis is warranted. 


ORDER

An initial rating in excess of 10 percent for right foot hyperkeratosis prior to June 4, 2014, and a rating in excess of 20 percent thereafter, is denied.

An initial rating in excess of 10 percent for left foot hyperkeratosis prior to June 4, 2014, and a rating in excess of 30 percent thereafter, is denied.




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs