Citation Nr: 20021413 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-26 786 DATE: March 25, 2020 ORDER Entitlement to an increased rating in excess of 10 percent for post-operative residuals of a right osteotomy is denied. Entitlement to an increased rating in excess of 10 percent for right rib area trauma is denied. Entitlement to a disability rating 20 percent, and no higher, for chronic painful callus of the right foot is granted. REMANDED Entitlement to service connection for a cardiovascular condition is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for a right knee injury is remanded. Entitlement to an increased rating for residuals of right hip area trauma, scars is remanded. Entitlement to service connection for poor circulation of the right leg is remanded. Entitlement to total disability due to individual unemployability is remanded. FINDINGS OF FACT 1. Throughout the rating period on appeal, postoperative residuals of a right osteotomy at the fifth metatarsophalangeal joint have been assigned the maximum schedular rating authorized under Diagnostic Code 5280; the symptomatology associated with this disorder is adequately addressed by this rating. 2. The service-connected right rib area trauma is currently at the maximum schedular rating available for superficial and painful scars; the right rib area trauma scar has not been shown to be productive of deep scars (associated with underlying tissue damage) or limited motion. 3. The Veteran’s chronic painful callus of the right foot are manifested by moderately severe symptoms. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for post-operative right osteotomy and resulting calluses have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5280. 2. The criteria for entitlement to a rating in excess of 10 percent for right rib area trauma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 5298-7804. 3. The criteria for a rating of 20 percent, but no higher, for chronic painful callus of the right foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1965 to September 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. Increased Rating 1. Entitlement to an increased rating for residuals of his post-operative right osteotomy, excision of bursal and sesamoid, 5th metatarsal. The Veteran contends that he is entitled to a higher rating for residuals of his post-operative right osteotomy, excision of bursal and sesamoid, 5th metatarsal. The Veteran’s right foot disability is rated as 10 percent disabling under Diagnostic Code 5280 for unilateral hallux valgus. 38 C.F.R. § 4.71a. This is the maximum available rating under this diagnostic code. Under that rating, a hallux valgus that has been operated on with resection of the metatarsal head or a severe hallux valgus equivalent to the amputation of the great toe warrants a 10 percent disability rating. 38 C.F.R. § 4.71a. The Board finds that a rating in excess of 10 percent is not warranted during the appeal period. Entitlement to a higher rating for postoperative residuals of his post-operative right osteotomy, excision of bursal and sesamoid, 5th metatarsal is denied. The May 2015 VA examination noted a 3 cm healed scar over the dorsum of the right 5th toe with no keloid. The Veteran noted shooting pain when he walks and stated that he cannot stand or walk over 15 minutes without pain. Pain was noted on palpation as well as on weight bearing. As noted above, a 10 percent rating is the maximum rating possible under Diagnostic Code 5280, and a higher rating is therefore not possible under that diagnostic code. The Board has considered whether a greater disability rating, higher than 10 percent, would be appropriate under alternative diagnostic code provisions. However, the competent evidence of record does not demonstrate a diagnosis of, or treatment for, other disorders of the feet, to include Diagnostic Code 5277 (bilateral weak foot), Diagnostic Code 5278 (acquired claw foot), Diagnostic Code 5281 (hallux rigidus), Diagnostic Code 5282 (hammer toe), or Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones). The Board has also considered whether a higher rating is warranted under Diagnostic Code 5284. Diagnostic Code 5284 provides a 10 percent rating for foot injuries, other, with impairment of a moderate degree, a 20-percent rating for moderately severe impairment, and a 30-percent rating for severe impairment. 38 C.F.R. § 4.71a. The Note to Diagnostic Code 5284 indicates that a maximum 40-percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. "Loss of use of a foot" is defined as no effective function remaining 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 balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. The Veteran has not loss his feet nor has he lost the use of them. He is, and always has been, impacted by painful callouses on the feet. These painful callouses have been appropriately compensated under Diagnostic Code 5284, as discussed below, and there is no objective evidence indicating that his residuals of right osteotomy disability is more appropriately evaluated as a foot injury or that the disorder rises to the level of moderately severe impairment to warrant an additional, higher rating under Diagnostic Code 5284. The Board has also considered whether a separate rating is warranted for the Veteran’s surgery scar. The evidence is against a finding that the Veteran's scar warrants a separate rating as it is not painful or unstable or of the size which would warrant a compensable rating. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. In conclusion, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for residuals of his post-operative right osteotomy, excision of bursal and sesamoid, 5th metatarsal. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased rating for right rib area trauma The Veteran contends that he is entitled to a higher rating for his service-connected rib area trauma residuals, currently rated under Diagnostic Code 7804 for unstable or painful scar. This rating stems from an August 2007 Board decision which recategorized the rating by analogy of the Veteran’s right rib disability to that of scars, due to the presence of a nodule and tenderness. The Veteran made a blanket increased rating claim for all service-connected disabilities in January 2011 The Veteran was provided an April 2014 examination for scars. The examination found that the Veteran did not have any scars in the rib area. In the June 2014 rating decision, the RO continued at 10 percent for painful scars for the right rib disability under Diagnostic Code 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran’s scar is not manifest by three or four scars that are unstable or painful. The Veteran’s April 2014 examination demonstrated no scar, but the disability was rated as analogous to scars and a 10 percent evaluation was assigned because the area was tender. The Board has also considered the other diagnostic codes; however, the Veteran’s scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. No scar covers an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and records do not show, that the Veteran’s right rib injury includes a scar that is manifest by three or four scars that are unstable or painful. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for a right rib injury, classified as a scar. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an increased rating for callouses of the right foot The Veteran contends that he is entitled to a higher rating because he has severe calluses on the bottom of his right foot, and they hurt when walking. The Veteran’s callouses are rated by analogy under Diagnostic Code 7804 for unstable or painful scar(s). The Veteran was provided VA examination in May 2015. The examination found calluses and porokeratosis bilaterally on the Veteran’s feet. The examiner noted that the Veteran has had severe calluses on the bottom of his feet since 1968. The Veteran stated that the calluses have caused more pain in the last few years. They cause pain when standing and walking. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and the demonstrated symptomatology. See Id. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic disease and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Where a different diagnostic code more appropriately reflects the nature of the Veteran's disability picture, and the change does not reduce the Veteran's level of compensation, the Board has the authority to change the assigned Diagnostic Code. See, Butts, 5 Vet. App. at 539. Thus, based on the foregoing, the Board finds that the Veteran’s chronic painful callus of the right foot disability is more accurately reflected by a single diagnostic code relating to injuries of the foot, Diagnostic Code 5284, as the evidence demonstrates that the Veteran's chronic painful callus of the right foot are not a scar and the documented symptoms of pain and function loss are more appropriately and favorably rated by Diagnostic Code 5284, which specifically provides subjective and objective rating criteria for the type of injury, contemplates multiple foot diagnoses, symptomatology, and functional impairment resulting from foot injuries rather than the more specific criteria for scars under Diagnostic Code 7804. Accordingly, the Board will address the Veteran’s service-connected chronic painful callus of the right foot disability pursuant to Diagnostic Code 5284. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Throughout the period on appeal, the Veteran has complained of constant pain due to his chronic painful callus of the right foot. The Board notes that VA examinations completed during the appeal period have reflected that this pain caused by the callus is exacerbated by weight bearing, leading to functional impairments in standing and walking. Based on the above, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 20 percent rating for the Veteran’s chronic painful callus of the right foot under Diagnostic Code 5284 is warranted. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for chronic painful callus of the right foot. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional impairment due to impaired ability with walking and standing due to pain on weight bearing. However, even considering the Veteran’s lay reports of symptoms and functional impairment, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating severe other foot injuries. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. – 3. Entitlement to service connection for a cardiovascular condition, prostate cancer and a right knee injury. In February 2003, the RO denied the Veteran’s claim of entitlement to service connection for a cardiovascular consider, based on the fact there was no evidence of a disability during active duty and no evidence within one year of separation from active duty. There was also no evidence showing service in Vietnam which would have conceded exposure to herbicides and established a presumption. The Veteran did not perfect his appeal and the February 2003 rating decision became final. 38 U.S.C. § 7105. In October 1970, the RO denied the Veteran’s claim of entitlement to service connection for a right knee injury because it was not shown to have been incurred or aggravated by service. The Veteran did not perfect his appeal and the October 1970 rating decision became final. 38 U.S.C. § 7105. In June 2003, the RO denied the Veteran’s claim of entitlement to service connection for prostate cancer because this condition was not shown to have been incurred in or aggravated by service or manifested to a compensable degree within one year from discharge from active duty. The Veteran did not perfect his appeal and the June 2003 rating decision became final. 38 U.S.C. § 7105. The Veteran then filed to reopen is claim of entitlement to service connection for a cardiovascular condition, prostate cancer and a right knee injury in January 2011. The Veteran’s service treatment records were obtained for the first time in June 2014. Hence, the claims fall within the exception created by 38 C.F.R. § 3.156(c)(1), which entitles the Veteran to reconsideration without requiring new and material evidence; and the effective date of any award shall be the date entitlement arose, or the date of receipt of the previously denied claims. See 38 C.F.R. § 3.156(c)(3). Remand is required so that the RO can reconsider the claims due to the receipt of these service treatment records. 4. Entitlement to an increased rating for residuals of right hip area trauma, scars is remanded. The Veteran argues that the prior hip examination did not properly account for limitations of motion due to pain by providing range of motion values where Veteran was restricted. Instead the examiner stated he was unable to describe functional loss due to range of motion because it would be speculation, as he is not present with vet during overuse. See C&P Exam (05/15/2015). However, the examiner did not attempt to ascertain and apply information through alternative means, in accordance with the case law. See Deluca v. Brown, 8 Vet. App. 202 (1995) (Court of Appeals for Veterans’ Claims held that for disabilities evaluated on the basis of limitation on motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment); Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) (finding an examination inadequate where it concluded that the additional functional loss due to flare-ups could not be assessed without resorting to speculation, but failed to “ascertain adequate information—i.e., frequency, duration, characteristics, severity, or functional loss—regarding his flares by alternative means”). The examination is inadequate, and remand is required for a new examination. 5. Entitlement to service connection for poor circulation of the right leg is remanded. The record shows that adequate information exists in the file to trigger the requirement for a VA examination under McLendon v. Nicholson, 20 Vet. App. 79(2006). Veteran has signs and symptoms of a current right leg condition. See Medical Treatment Record –Non-government Facility (01/02/2012). Further, service treatment records note cramps in Veteran’s legs while in service. Thus, remand is required, and an examination should be scheduled. 6. Entitlement to total disability due to individual unemployability is remanded. Finally, because a decision on the remanded issues of entitlement to higher ratings for right hip area trauma and right leg circulation could significantly impact a decision on the issue of entitlement to a total disabilty rating due to individual unemployability, the issues are inextricably intertwined. A remand of the claims for entitlement to higher ratings for right hip area trauma and right leg circulation is required. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private treatment record pertinent to the claims remaining on appeal. 2. In accordance with 38 C.F.R. § 3.156(c), reconsider the claims of entitlement to service connection for a cardiovascular condition, prostate cancer, and a right knee disability. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right hip trauma. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right leg circulatory condition. The entire claims file must be made available to and reviewed by the examiner. All necessary tests and studies must be completed. Based on a review of the claims file and examination of the Veteran, the examiner must opine whether any diagnosed right leg circulatory condition is at least as likely as not related to an in-service injury, event, or disease, to include any pertinent symptoms, complaints, or findings documented in the Veteran’s service treatment records. In providing the requested opinion, the examiner must consider and discuss the Veteran’s statements regarding the onset and progression of the claimed disorder. The rationale for all opinions must be provided. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a total disability rating due to individual unemployability. When reconsidering service connection for a cardiovascular condition, prostate cancer and a right knee injury, address the claims on the merits rather than as claims to reopen. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph Montanye, 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.