Citation Nr: 1806984 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-23 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 20 percent for a skin disability of the feet, to include scars of the feet, plantar warts, and calluses. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from January 1982 to January 1985. The Veteran earned the Sea Service Deployment Ribbon, Good Conduct Medal, and Rifle Sharpshooter Badge during service. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied a compensable rating for plantar warts and calluses of feet. During the pendency of the appeal, in an April 2015 rating decision, the Appeals Management Center granted entitlement to service connection for scars of the feet (previously rated under 38 C.F.R. § 4.118, Diagnostic Code 7819), assigning a 20 percent rating, effective February 28, 2008. Nevertheless, applicable law mandates that when a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Here, the Veteran has not withdrawn his claim for an increased evaluation of his skin disability of the feet; thus, the issue remains on appeal and has been recharacterized as reflected above. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, related symptoms, and any other information of record. Clemons v. Shinseki, 23 Vet. App 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the issue of service connection for scars of the feet has been recharacterized on the front page of this decision as service connection for a skin disability of the feet, to include scars of the feet, plantar warts, and calluses. The issue of entitlement to a compensable rating for a skin disability of the feet was previously remanded by the Board in February 2015 and May 2016 for additional development. In addition, the Board requested a Veterans Health Administration (VHA) opinion in July 2017, which was provided in October 2017. In November 2017, the Veteran and his representative were provided with a copy of the October 2017 VHA opinion. The Veteran was given 60 days in which to send any additional evidence or argument regarding the case pursuant to 38 C.F.R. § 20.903. That period has now elapsed and VA has received no additional argument from the Veteran or his representative. FINDING OF FACT For the period on appeal, the Veteran's skin disability of the feet has been manifested by four calluses, tenderness with palpation, and pain with any weight-bearing activity. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a skin disability of the feet have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7819-7804 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's entire history is reviewed when assigning disability ratings. See generally 38 C.F.R. § 4.1. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2017). The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. The Court has held that a Veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the Veteran for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a Veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's disability is currently evaluated under DC 7819-7804. Diagnostic Code 7819 establishes the rating criteria for benign skin neoplasms, and instructs that a Veteran's disability be rated under Diagnostic Codes 7800 to 7805 (as disfigurement of the head, face, or neck; scars; or for impairment of function). The Board notes that during the pendency of the Veteran's claim, the regulations pertaining to evaluation of disabilities of the skin were amended. See 73 Fed. Reg. 54705-54712. (Sept. 23, 2008) (effective October 23, 2008). It is further noted that the regulatory changes apply to applications received by VA on or after October 23, 2008, or if the Veteran requests review under the clarified criteria. Although the Veteran did not specifically request review under the revised criteria, the Board has an obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes his benefits. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Prior to October 23, 2008, Diagnostic Code 7804 provided that superficial scars, which were painful on examination, warranted a maximum 10 percent evaluation. Currently, Diagnostic Code 7804 provides that one or two scars that are unstable or painful are rated 10 percent disabling; three or more scars that are unstable or painful are rated 20 percent disabling; and five or more scars that are unstable or painful are 30 percent disabling. Note (1) to Diagnostic Code 7804 provides 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, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides 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. The Veteran was afforded a VA examination in May 2008. The Veteran reported that he experienced pain with prolonged standing or walking. Treatment for his skin disability included shaving of the callouses and plantar warts, in addition to the use of orthotic insoles. These treatment options were noted to offer some relief with no side effects. The Veteran further reported that he experienced bilateral foot pain on a constant basis, which was characterized as aching, burning, and sharp with a severity of 8 out of 10 at its highest level. The Veteran stated that the pain was exacerbated by physical activity or prolonged walking and relieved by rest and podiatric treatment. The Veteran denied hospitalizations or surgeries, but required shaving of the calluses on numerous occasions. The examiner noted functional impairment as difficulty with prolonged standing and walking and stated that the Veteran was able to stand 15 to 30 minutes. The VA examination revealed that there were no scars present. The examiner noted indurated callus areas on the first metatarsophalangeal joints of the feet bilaterally, along with the fifth metatarsophalangeal points of the soles of feet. The examiner further noted that these manifestations were consistent with calluses and plantar warts. The examiner noted abnormal signs of weight bearing, consisting of callosities, as well as breakdown at the heels. There was evidence of tenderness bilaterally, with moderate tenderness observed with palpation of the plantar surface of the feet. The examiner observed no change in the Veteran's diagnoses of plantar warts and calluses of the feet. Pursuant to February 2015 remand instructions, the Veteran was afforded a VA examination in April 2015. The examiner observed a 2.5 cm x 2.5 cm area of thick, firm, yellow skin resembling a callus on the plantar surface of first metatarsophalangeal joint area, and a 1.5 cm x 1.5 cm area on the plantar surface of fifth metatarsophalangeal joint area of the left foot. The total affected surface area for the left foot was 8.5 cm. The examiner further noted a 3.5 cm x 2.5 cm area of thick, firm, yellow skin resembling a callus on the plantar surface of first metatarsophalangeal joint area, and a 2.5 cm x 2.0 cm area on the plantar surface of fifth metatarsophalangeal joint area of the right foot. The total affected surface area for right foot was 13.75 cm. The noted callused areas were tender to palpation. The Veteran also complained of pain on weight bearing. The Veteran reported that the skin condition affected his ability to work, as being on his feet caused him pain and made it hard to get around when he got home. Pursuant to May 2016 remand instructions, the Veteran was afforded another VA examination to determine the severity and manifestations of his service-connected skin condition of the feet under the rating criteria prior to October 23, 2008. The Veteran complained of pain with any weight bearing activity. The examiner noted that it was "impossible to render an opinion without resorting to mere speculation as to whether the Veteran's symptoms are associated with the service-connected disability versus other nonservice-connected disabilities affecting the feet." The examiner further noted that the affected surface area of the left foot was 8.5 cm and 13.75 cm of the right foot. The examined observed no associated scars. In July 2017, a VHA opinion was requested to address the symptomatology attributable to the Veteran's service-connected skin disability of the feet. The examiner opined that the Veteran continued to suffer from hyperkeratotic lesions, which led to difficulty walking. The examiner further opined that the Veteran's service-connected calluses and plantar warts more closely approximated a degree of impairment characterized as "moderate" under DC 5284. At the outset, the Board finds that the revised criteria of Diagnostic Code 7804 are most favorable to the Veteran. To that extent, the Board finds that a higher rating is not warranted under Diagnostic Code 7804, as the Veteran does not have five or more unstable or painful calluses. As observed in his April 2015 and May 2016 examinations, the Veteran had two calluses on the left foot and two calluses on the right foot. The examiners noted that the calluses were tender to palpation and painful with weight bearing. None of the Veteran's calluses were noted to be unstable. Having considered the evidence, the Board finds that the Veteran's skin disability of the feet is best embodied in the criteria for a 20 percent rating. The Board has also considered the potential application of any other diagnostic code, particularly DC 5284 relating to other foot injuries. However, the Board notes that while a separate rating can be considered, in this instance, it is not warranted. The evidence does not show a functional limitation of the feet other than by pain, which is already contemplated by the assigned rating. To the extent that his function is limited by pain, the 20 percent rating currently in effect for the painful calluses fully contemplates the described symptomatology, and no higher or separate rating is warranted. Moreover, to assign a separate rating under Diagnostic Code 7805 for functional loss due to a painful scar would be pyramiding in this instance, which is not permitted. 38 C.F.R. § 4.14 (pyramiding is rating the same disability, or the same manifestation of a disability, under different diagnostic codes, which is to be avoided). Accordingly, the Veteran's claim of entitlement to a disability rating in excess of 20 percent for a skin disability of the feet must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against a higher schedular rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits"); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, unfortunately, the Board concludes that a higher rating is not warranted at this time. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 20 percent for a skin disability of the feet is denied. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs