Citation Nr: 20072862 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 14-23 997 DATE: November 12, 2020 ORDER Entitlement to a disability rating in excess of 30 percent for callosities of the right foot is denied. Entitlement to a disability rating in excess of 30 percent for callosities of the left foot is denied. FINDINGS OF FACT 1. The Veteran’s callosities of the right foot have not been manifested by actual loss of use of the foot. 2. The Veteran’s callosities of the left foot have not been manifested by actual loss of use of the foot. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent for callosities of the right foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, 4.118, Diagnostic Codes 5284, 7819. 2. The criteria for entitlement to a disability rating in excess of 30 percent for callosities of the left foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, 4.118, Diagnostic Codes 5284, 7819. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1980 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision that denied entitlement to an increased (compensable) disability rating for service-connected callosities of both feet. In July 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The Veteran’s claim for entitlement to a compensable disability rating for bilateral callosities of the feet was remanded by the Board in February 2018 for further development. In an August 2020 rating decision, the Veteran’s callosities of the right foot were assigned a 30 percent disability rating, effective July 31, 2012—the date the Veteran filed a claim for an increased disability rating. The rating decision also assigned a separate 30 percent disability rating for the Veteran’s callosities of the left foot, effective July 31, 2012. Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV.  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. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102.  Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition.  See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14.  Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The words “slight,” “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 the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to a disability rating in excess of 30 percent for callosities of the right foot is denied. 2. Entitlement to a disability rating in excess of 30 percent for callosities of the left foot is denied. By way of history, in November 1993 the RO granted service connection for callosities of both feet and assigned an initial noncompensable disability rating under Diagnostic Code 7819, effective July 31, 1992. Diagnostic Code 7819 provides for rating benign skin neoplasms as disfigurement of the head, face, or neck (Diagnostic Code 7800), as scars (Diagnostic Codes 7801-7805), or impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7819. In an August 2020 rating decision, the RO assigned a 30 percent rating for callosities of the right foot and left foot under Diagnostic Code 5284, respectively, effective July 31, 2012, the date the Veteran’s claim for an increased rating. Diagnostic Code 5284 contemplates foot injuries, other. A 30 percent rating is warranted for symptomatology of a severe foot injury. A maximum 40 percent rating is warranted for the actual loss of the foot. 38 C.F.R. § 4.71a, DC 5284. Loss of use of the foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether the act of balance and propulsion could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Turning to the evidence at hand, a review of the file demonstrates that the Veteran has experienced significant, chronic bilateral foot pain as a result of his service-connected callosities. During the July 2017 hearing, he provided that he has calluses on the bottom and sides of his feet. The Veteran stated that he has shooting pain through his toes and his calluses are constantly sore. For treatment, the Veteran visits a podiatrist and he trims his calluses, but the calluses return and do not heal. He stated that he utilizes prosthetics, special shoes, and a cane as a result of his calluses. In terms of functional impairment, the Veteran further advised that he cannot walk longer than 10 yards, in part, because of his feet. The Veteran is most comfortable when he is seated. Additionally, the Veteran submitted a September 2019 written statement in which he stated that he walks with a limp and requires the use of a cane. The Veteran also stated that he can only walk 20 yards without stopping. The Veteran’s VA treatment records also show the severity of his right and left foot callosities. His physical activity is limited, in part, due to his foot pain as he can only stand for a limited amount of time. His records demonstrate that he was provided with extra depth shoes and custom full length foot orthotics with metatarsal pads. The Veteran was prescribed a cream to apply to the callused areas of his feet daily. A July 2011 VA treatment record states that the Veteran had his calluses debrided. A February 2012 VA Physical Therapy Initial Evaluation Consult provides that the Veteran complains of pain with direct contact pressure from any shoe and pain limits walking to 20 yards before resting. The Veteran uses a cane and wears slide sandals due to pain. VA Podiatry Operative Notes from August 2012, September 2013, July 2014, November 2014, and July 2015 provide that the Veteran has pain on the balls of his feet where he develops chronic callus formation. An April 2014 VA Podiatry Clinical Visit demonstrates that the Veteran’s overall foot type is good with no gross structural abnormalities. A March 2015 VA Podiatry Operative Note states that the Veteran feels his foot condition has improved and he is happy with his functional ability. The Veteran’s callus formation is on the balls of his feet bilaterally. A February 2016 VA Podiatry Operative Note states that the Veteran’s chief concern includes painful calluses during ambulatory activities in closed shoe gear for the past few weeks. The Veteran related that he has difficulty trimming the calluses. An April 2018 VA Podiatry Consult states that the majority of the Veteran’s foot complaints center around his painful calluses in the forefront and he uses a pumice stone to maintain the calluses. The Veteran does not wear custom shoe orthotics and shoes instead preferring to ambulate in slippers. The impression was noted as diffuse trophic callus formation. The Veteran was also afforded VA examinations to evaluate the nature and severity of his bilateral foot callosities. A December 2012 VA Foot Miscellaneous (other than Flatfoot/Pes Planus) Disability Benefits Questionnaire provides that the Veteran states that his feet hurt him constantly to the point that he can only wear slippers without heel straps. The Veteran uses a cane regularly as an assistive device as a normal mode of locomotion although occasional locomotion by other methods is possible. The examiner noted that the Veteran did not have functional impairment of his feet such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran was also afforded a June 2018 VA Foot Conditions, including Flatfoot (Pes Planus) Disability Benefits Questionnaire. The examination report states that the Veteran has a diagnosis of bilateral foot callosities. The Veteran has bilateral foot pain with weightbearing activities and no flare-ups. He has functional loss as standing and walking cause bilateral foot pain. The Veteran has tender calluses on the plantar aspects of both feet. He has pain with weightbearing and foot range of motion. The examiner stated that the Veteran’s callosities are severe bilaterally, chronically compromise weightbearing, and require arch supports, custom orthotic inserts, or shoe modifications. The June 2018 examination report states that the Veteran has pain bilaterally that contributes to functional loss. Bilaterally, the Veteran has pain on movement, pain on weightbearing, swelling, instability of station, disturbance of locomotion, interference with standing, and lack of endurance. There is pain on passive range of motion and pain when the joint is use in non-weightbearing, bilaterally. The Veteran uses a cane constantly as a normal mode of locomotion, although occasional locomotion by other methods may be possible. The examiner stated that the Veteran’s bilateral foot callosities did not cause functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Additionally, the Veteran was afforded a July 2020 VA Foot Conditions, including Flatfoot (Pes Planus) Disability Benefits Questionnaire. The Veteran reports worsening pain with difficulty walking and standing. The Veteran has daily flares of pain that are sharp. In terms of functional impairment, the Veteran’s bilateral foot callosities cause difficulty with prolonged weightbearing activities. The Veteran has pain with weightbearing and foot range of motion. The Veteran’s symptoms are severe bilaterally and his foot disability chronically compromises weightbearing. The June 2020 examination report states that the Veteran has pain bilaterally that contributes to functional loss. Bilaterally, the Veteran has pain on movement, pain on weightbearing, swelling, instability of station, disturbance of locomotion, and interference with standing. There is no pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time or functional loss during flare-ups or when the foot is used repeatedly over time. The Veteran uses a cane constantly for ambulation difficulties due to his bilateral foot callosities as a normal mode of locomotion, although occasional locomotion by other methods may be possible. The examiner stated that the Veteran’s bilateral foot callosities did not cause functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran was also afforded a July 2020 VA Skin Diseases Disability Benefits Questionnaire. The examination report states that the Veteran has not been treated with medication in the past 12 months for any skin condition. The Veteran’s bilateral foot callosities covered a total body area less than 5 percent, no exposed area, and are described as yellow thickened skin. The Veteran does not have a benign or malignant neoplasm or metastases related to his bilateral callosities. The Board finds that the Veteran is not entitled to a disability rating in excess of 30 percent under Diagnostic Code 5284 for either foot. As noted above, a 40 percent rating is provided under Diagnostic Code 5284 only when there is actual loss of use of the foot. There is no indication in the record that the Veteran has lost the use of his left or right foot such that a 40 percent rating is warranted under Diagnostic Code 5284. To the contrary, each VA examiner stated that the Veteran’s bilateral foot callosities did not cause functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. See 38 C.F.R. § 4.63. Additionally, disability ratings for the skin under 38 C.F.R. § 4.118 have been contemplated. However, the assignment of disability ratings under 38 C.F.R. § 4.118 and 38 C.F.R. § 4.71a for the Veteran’s right and left foot callosities would violate the rule against pyramiding, or the evaluation of the same disability or its manifestations under various diagnoses. See 38 C.F.R. § 4.14. The Veteran’s calluses are painful and require debridement or trimming with pumice. These symptoms and the resulting impairment of function have been considered in the assignment of the 30 percent ratings under DC 7819-5284, for severe foot disabilities. To assign separate ratings under DC 7804 for unstable or painful scars would amount to compensating the Veteran for the same manifestations under two separate diagnostic codes. Further, the criteria for a compensable disability rating are not met under DC 7806 as the Veteran’s calluses have been described as covering a total body area of less than 5 percent and no exposed areas and have been shown only to require treatment with a topical cream for dry skin (i.e., Zzurea). See 38 C.F.R. § 4.118, DC 7806. In the alternative, the size and location of the area affected by the Veteran’s calluses on the balls of his feet, as well as the need to apply a topical cream, are also contemplated by the 30 percent ratings assigned under DC 5284, for severe foot disabilities. See 38 C.F.R. §§ 4.71a, 4.118, DCs 5284, 7801, 7802, 7803, 7806. Thus, to assign separate ratings under DCs 7801, 7802, 7803, and/or 7806 would amount to pyramiding. See 38 C.F.R. § 4.14. Because the preponderance of the evidence is against disability ratings in excess of 30 percent for the Veteran’s right and left foot callosities, the benefit of the doubt doctrine is not applicable in the instant appeal and increased ratings are denied. See 38 U.S.C. §§ 1155, 5107; Gilbert, 1 Vet. App.at 55-57. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.