Citation Nr: 18145329 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-25 829 DATE: October 26, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for bilateral Morton’s neuroma, post-excision, with residuals is denied. Entitlement to an initial compensable disability rating for right cheek scar is denied. FINDINGS OF FACT 1. During the appeal period, the Veteran’s bilateral Morton’s neuroma, post excision, with residuals has manifested in an altered foot shape with pain, altered sensation, and numbness in four toes, with no functional loss or dorsiflexion of the toes. 2. The Veteran’s scar of the right cheek is not unstable or painful, does not show visible or palpable tissue loss or gross distortion or asymmetry of the features, shows none of the eight characteristics of disfigurement, and does not result in any functional loss. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for bilateral Morton’s neuroma, post-excision, with residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5278, 5279. 2. The criteria for an initial compensable rating for scar of the right cheek have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7800, 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1991 to September 2011. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran submitted VA Form 21-0958, Notice of Disagreement (NOD), with a June 2016 rating decision that denied service connection for Meniere’s syndrome and peripheral vestibular disorder. The Board’s review of the claims file reveals that the Agency of Original Jurisdiction is in the process of taking action on this NOD. As such, the Board will not take any further action on the matter, and it will only be before the Board if the Veteran timely files a substantive appeal after a statement of the case (SOC) is issued. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Entitlement to a disability rating in excess of 10 percent for bilateral Morton’s neuroma, post-excision, with residuals is denied The Veteran contends that his bilateral pes cavus and bilateral Morton’s neuroma with metatarsalgia warrants a higher disability rating. The disability is currently rated at 10 percent under Diagnostic Code 5278, effective October 1, 2011. He filed this claim for an increased rating on April 24, 2014. Diagnostic Code 5278 provides for evaluations of either unilateral or bilateral acquired claw foot (pes cavus) ranging from noncompensable to a maximum 50 percent rating for bilateral claw foot with marked contraction of the plantar fascia. Bilateral acquired claw foot (pes cavus) when slight warrants a noncompensable rating. When bilateral with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, and definite tenderness under the metatarsal heads, a 10 percent rating is warranted. When bilateral with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to a right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads, a 30 percent rating is warranted. With marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity a 50 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5278. Diagnostic Code 5279 metatarsalgia, anterior (Morton’s disease), either unilateral or bilateral, warrants only a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5279. “Metatarsalgia is a cramping burning pain below and between the metatarsal bones where they join the toe bones.” Nix v. Brown, 4 Vet. App. 462, 464 (1993); Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Metatarsalgia is a term that refers to chronic pain in the ball of the foot from any of a variety of causes, one of which is Morton’s neuroma. Morton’s neuroma (or disease) is a painful neuropathy of the digital plantar nerve that usually results in pain in the ball of the foot between the third and fourth metatarsal heads. As with pes cavus and flatfoot, the symptoms of metatarsalgia may be unilateral or bilateral, and may be relieved with appliances, orthoses, or orthopedic shoes. Occasionally, surgery is needed for relief. 68 Fed. Reg. 7020 (Feb. 11, 2003). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45. For the reasons that follow, the Board has concluded that the Veteran’s bilateral Morton’s neuroma, post-excision, with residuals is most appropriately evaluated under Diagnostic Code 5279 for the entire appeal period. VA can change the Diagnostic Code that a particular disability is rated under so long as the rating under that Diagnostic Code has not been in effect for 20 years. See 38 C.F.R. 3.951(b); see Murray v. Shinseki, 24 Vet. App. 420, 425 (2011). VA must explain the change in the Diagnostic Code. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). As will be explained further below, the record does not reflect that the Veteran has had symptoms of claw foot during the period on appeal. Therefore, the Board concludes that Diagnostic Code 5279 best reflects symptoms of the Veteran’s bilateral foot disability. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). In addition, changing the Diagnostic Code from 5278 to 5279 does not reduce the Veteran’s rating at any time during the appeal period. Accordingly, and as explained further below, the Board has changed the Diagnostic Code to 5279 for the entire appeal period. In his April 2014 claim, the Veteran reported that he underwent corrective surgery on both feet in April 2012. He said that the interdigital nerves of the 3rd and 4th toes on both feet were paralyzed, and he reported that these four toes had altered sensation and numbness. The Veteran also said that his April 2012 surgery included cutting the bilateral metatarsal ligaments, causing splaying of the bilateral 3rd and 4th toes and forefoot. He said that his feet have a different shape and that it is difficult to find comfortable shoes and that he had developed calluses on his feet as a result. The Veteran underwent a VA examination in June 2015. The examiner found no dorsiflexion of the toes and did not diagnose pes cavus. The Veteran reported pain on examination but the examiner found that the pain did not constitute functional loss and found that the Veteran did not show any other functional loss such as more or less movement than normal, or weakened movement or excess fatigability. The Veteran also reported that he did not experience functional loss of the foot. The examiner diagnosed bilateral Morton’s neuroma post excision with residuals of plantar foot pain in the third/fourth interspace. The Veteran had scars from the April 2012 foot surgery and these scars were given a separate rating in an April 2016 rating decision and are not a subject of the current appeal. The evidence does not show symptoms of claw foot (pes cavus) during the period on appeal. The Veteran did not report symptoms of claw foot in his April 2014 claim and the June 2015 VA examiner did not diagnose it. Thus, rating under Diagnostic Code 5278 is inappropriate as the Veteran’s symptoms do not more nearly approximate the symptoms described in these rating criteria. The competent medical evidence for the period on appeal indicates that the Veteran has bilateral Morton’s neuroma post excision with residuals. Morton’s neuroma (metatarsalgia) is to be rated under Diagnostic Code 5279. The only and maximum rating under Diagnostic Code 5279, for unilateral or bilateral involvement, is 10 percent. Thus, a higher rating is not warranted under this Diagnostic Code. 38 C.F.R. § 4.71a, Diagnostic Code 5279. The Board has also considered other potentially applicable Diagnostic Codes. However, the evidence of record does not show a diagnosis of flatfoot, weak foot, hallux valgus, hallux rigidus, hammer toe, the malunion or nonunion of tarsal or metatarsal bones, or other foot injuries during the appeal period. As such, separate ratings under 38 C.F.R. § 4.71a, DC 5276, 5277, 5280, 5281, 5282, 5283, or 5284 are not warranted. Further, the Veteran’s disability is not shown to involve other body systems. Therefore, this disability does not warrant an evaluation under any other provisions of the rating schedule for the period on appeal. The Board finds Diagnostic Code 5279, for residuals of metatarsalgia, anterior (Morton’s disease), is applicable for the period on appeal. The Veteran’s disability warrants a 10 percent rating, the maximum rating allowed for this diagnostic code. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995). However, an increased rating is not warranted during the period on appeal based on functional loss because the symptom of pain is already contemplated in assigning a disability rating for status Morton’s neuroma post excision with residuals, and the June 2015 VA examiner reported no other signs of functional loss. The Veteran’s representative cites a July 2011 VA examination which detected pain in the right great toe, bilateral arch pain, painful motion, and tenderness, as well as moderate bilateral tenderness of the plantar surfaces. However, this evidence is outside of the period on appeal and while important for consideration in regard to the history of the disability, does not address the severity of the condition during the current appeal period. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a compensable disability rating for bilateral foot pes cavus and bilateral Morton’s neuroma with metatarsalgia is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a compensable disability rating for right cheek scar is denied The Veteran contends that he is entitled to an increased disability rating for a facial scar incurred during service. The applicable rating criteria for this disability include Diagnostic Code 7800, 7804, and 7805. The Board notes that on July 13, 2018, VA published a final rule amending its regulations on skin disabilities. 83 Fed. Reg. 32,592 (July 13, 2018). The effective date of the final rule is August 13, 2018. For this final rule, VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran filed his April 2014 claim before the August 13, 2018, effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. Diagnostic Code 7800 was not revised by the recent regulatory amendments. Under Diagnostic Code 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. A 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is to be assigned in cases of visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes, (including eyelids), ears (auricles, (cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips) or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. Note (1) to Diagnostic Code 7800 states that the eight characteristics of disfigurement are: scar 5 or more inches (13 or more centimeters) in length, scar at least one-quarter inch (0.6 centimeters) wide at widest part, surface contour of scar elevated or depressed on palpation, scar adherent to underlying tissue, skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters), skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters), underlying soft tissue missing in an area exceeding six square inches (39 square centimeters), and skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). Diagnostic Codes 7801 and 7802, prior to and from August 13, 2018, evaluate scars not of the head, face, or neck. As the Veteran’s scar is on the cheek, these Diagnostic Codes will not be discussed further. Under both the old and new rating criteria, Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating is assigned for one or two such scars. A 20 percent rating is warranted for three to four scars, and a 30 percent disability rating is assigned for five or more scars. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic 7804. Under the rating criteria effective prior to August 13, 2018, Diagnostic Code 7805 provided that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). The Board notes that this diagnostic code is largely unchanged under the new amendments apart from the replacement of the phrase “(including linear scars)” with “and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804.” 38 C.F.R. § 4.118, Diagnostic Code 7805 (effective Aug. 13, 2018). The Veteran filed his claim for compensation for a right cheek scar in April 2014. In an accompanying statement in support of the claim, the Veteran said that he cut his right cheek in service and that it healed abnormally, leaving a visible scar. The Veteran was afforded a VA examination for scars in June 2015. The examiner reported that the scar was not painful or unstable. The scar was 1.5cm by 0.2cm on the right maxilla. The examiner found that the scar was not elevated or depressed and did not adhere to underlying tissue. There was no missing underlying soft tissue, abnormal pigmentation, or distortion of facial features or tissue loss. The examiner found no limitation of function. Accordingly, a noncompensable rating under Diagnostic Code 7800 is appropriate here because the Veteran has a scar of the face without visible or palpable tissue loss or gross distortion or asymmetry of the features, and showing no characteristics of disfigurement. The result is the same whether the old or new rating criteria are applied for the following reasons. In both the new and old versions of Diagnostic Code 7800, a higher rating is warranted only when there is visible or palpable tissue loss and either gross distortion or asymmetry of the features, or when the scar results in at least one of the eight characteristics of disfigurement listed above. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. A higher rating is not warranted under Diagnostic Code 7804 because the evidence of record does not indicate that the Veteran’s facial scar is unstable or painful. Similarly, a higher rating is not warranted under the new or old version of Diagnostic Code 7805 because the evidence shows that the scar results in no disabling effect. 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to an initial compensable disability rating for a scar of the right cheek is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dean, Associate Counsel