Citation Nr: 18150729 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-43 621 DATE: November 15, 2018 ORDER Entitlement to a rating greater than 50 percent for bilateral callouses is denied. Entitlement to an effective date earlier than June 4, 2012 for the increased rating of 50 percent for bilateral callouses is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s callouses are manifested by pronounced symptoms, namely extreme tenderness of plantar surfaces of the feet and are not so exceptional so as to render the schedular evaluation of the disability inadequate. 2. It is not factually ascertainable that the Veteran’s bilateral callous symptoms increased in severity to warrant a 50 percent disability rating within a year prior to June 4, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating greater than 50 percent for bilateral callouses have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2018). 2. The criteria for an effective date earlier than June 4, 2012 for an increased rating to 50 percent for bilateral callouses have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to March 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating greater than 50 percent for bilateral callouses A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran contends that he should be granted a rating greater than 50 percent disabling for his bilateral callouses. Throughout the appeal period the Veteran’s foot condition was manifested by extreme tenderness of plantar surfaces, marked inward displacement, characteristic callosities, inward bowing of the Achilles tendon, and pain on use of feet. See October 2009 Medical Treatment Record; August 2012 VA Examination; September 2012 VA Examination; April 2012 Medical Treatment Record. In a November 2012 decision, the AOJ granted a 50 percent rating for the Veteran’s bilateral callouses under Diagnostic Code 5276. This maximum schedular rating contemplates pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliance. The Board acknowledges that the Veteran’s representative has asserted that 38 C.F.R. § 3.321 applies in this case. At the outset, it is observed that 38 C.F.R. § 3.321(b)(1) has been amended, effective January 8, 2018, to clarify that an extraschedular analysis need only apply to a single disability, rather than upon consideration of multiple service-connected disabilities. See 82 Fed. Reg. 57830 (December 8, 2017). Therefore, the Board need only consider whether an extraschedular evaluation should be applied based only on the service-connected bilateral callouses. 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. See Thun v. Peake, 22 Vet. App. 111, 115-19 (2008). However, in this case, the Board finds that the diagnostic criteria of the rating schedule reasonably describe the Veteran’s disability level and symptomatology. Diagnostic Code 5276 encompasses all the Veteran’s reported and observed symptomatology attributed to his bilateral callouses, to include extreme tenderness of plantar surfaces, marked inward displacement, characteristic callosities, inward bowing of the Achilles tendon, and pain on use of feet. The Veteran’s disability picture and symptoms are adequately contemplated by the rating schedule, and the assignment of the 50 percent rating throughout the appeal period is adequate in this case. Therefore, a rating greater than 50 percent for bilateral callouses, to include on an extraschedular basis, is not warranted. 2. Entitlement to an effective date earlier than June 4, 2012 for the increased rating of 50 percent for bilateral callouses Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2017). However, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. 38 C.F.R. § 3.400(o)(2). During the pendency of the appeal, the definition of what constitutes a valid claim has changed. For the purposes of this case, a claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2013). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). Further, in some cases, a report of examination or hospitalization will be accepted as an informal claim for benefits. 38 C.F.R. § 3.157. In a May 1994 rating decision, the AOJ granted entitlement to service connection for bilateral callouses, rated as noncompensable. In October 2008 the Veteran filed a claim seeking an increased rating for bilateral callouses. In an April 2009 rating decision, the AOJ granted an increased rating of 10 percent, effective October 2008. The Veteran submitted a notice of disagreement with the April 2009 rating decision. In a January 2010 rating decision, the AOJ denied a rating greater than 10 percent. The Veteran did not submit a notice of disagreement with the January 2010 rating decision. No new and material evidence was received within one year of the issuance of the January 2010 rating decision. As such, the January 2010 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011). On June 4, 2012, VA received the Veteran’s claim seeking an increased rating for his bilateral callouses. In a November 2012 rating decision, the AOJ granted entitlement to a 50 percent disability rating for the Veteran’s bilateral callouses, effective June 4, 2012. The Veteran contends he is entitled to an earlier effective date of June 4, 2012 for the grant of the 50 percent disability rating. See March 2013 notice of disagreement; see also September 2016 VA Form 9. The Board finds the Veteran did not file a claim, either formal or informal, for an increased disability rating for bilateral callouses prior to the June 4, 2012 claim. Following the unappealed January 2010 rating decision, the evidence of record does not indicate that either the Veteran or his representative indicated an intent to apply for an increased disability rating, or indicating the Veteran’s bilateral callouses had worsened, prior to the communication received on June 4, 2012. Further, the Board finds that an informal claim was not received in accordance with 38 C.F.R. § 3.157. The Veteran’s VA treatment records do not indicate that he received VA treatment for his bilateral callouses following the unappealed January 2010 rating decision and prior to the June 2012 claim. Therefore, the question before the Board is when it is shown from the evidence of record that the Veteran met the criteria for the 50 percent disability rating for his bilateral callouses. See 38 C.F.R. § 3.400(o)(1). The Board is to determine the “earliest date as of which,” within the year prior to the claim, the increase in disability was ascertainable. See Servello, 3 Vet. App. 196; 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.155, 3.400(o)(2). There is no diagnostic code dedicated to rating bilateral callouses. When an unlisted condition is encountered, it will be permissible to rate the disability under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Given the Veteran’s symptomatology and location, his bilateral callouses have been rated by analogy to flatfoot under Diagnostic Code 5276. See, e.g., April 2009 rating decision. Under Diagnostic Code 5276, a 50 percent disability rating is warranted for a pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasms of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.115b. The Board finds it was not factually ascertainable prior to the Veteran’s June 4, 2012 claim that his bilateral callouses had increased in severity to meet the criteria for a 50 percent disability rating. Although the Veteran’s VA treatment records continued to note the Veteran suffered from hammer toes, callouses, hallux vulgus and foot pain, the Board finds his VA treatment records did not indicate any complaints by the Veteran of worsening foot pain, or indications marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement or severe spasm of the Achilles tendon. A medical treatment record received June 4, 2012 is the first evidence of record indicating the Veteran suffered marked pronation, extreme tenderness and marked inward displacement. Accordingly, the Board concludes that it is not factually ascertainable that the Veteran was entitled to a 50 percent disability rating for his bilateral callouses manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon prior to June 4, 2012. 38 C.F.R. § 3.400(o). Therefore, the Board finds that an effective date prior to June 4, 2012 for the 50 percent disability rating for the bilateral callouses is not warranted. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, the claim is denied. REASONS FOR REMAND 1. Entitlement to TDIU is remanded. The Veteran does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). In his June 2014 claim, the Veteran indicated that he became unable to work due to his service-connected foot condition. The Board is prohibited from awarding extraschedular TDIU in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). Accordingly, the claim is referred to the Director of the Compensation Service for consideration of extraschedular TDIU in the first instance. The matter is REMANDED for the following action: 1. Refer the Veteran’s claim for TDIU to the Director of the Compensation Service for extraschedular consideration. 2. Then readjudicate the claim. If the benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Brandt