Citation Nr: 21001893 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-46 185 DATE: January 12, 2021 ORDER Entitlement to a 10 percent rating for right foot callouses is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a 10 percent rating for left foot callouses is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran’s right foot callouses are productive of pain and limited motion resulting in moderate functional impairment. 2. The Veteran’s left foot callouses are productive of pain and limited motion resulting in moderate functional impairment. CONCLUSIONS OF LAW 1. The criteria to a 10 percent rating for right foot callouses are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 7819-5284. 2. The criteria to a 10 percent rating for left foot callouses are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DCs 7819-5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to December 1982, and from October 1997 to July 1998. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) November 2014 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran appeared before the undersigned Veterans Law Judge at a January 2019 Board hearing. A transcript of that hearing has been reviewed, and is associated with the claims file. In April 2020 the Board, in pertinent part, remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. 1. Entitlement to a compensable rating for right foot callouses 2. Entitlement to a compensable rating for left foot callouses The Veteran claims that his bilateral foot disabilities have worsened, and he should be entitled to compensable ratings. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In recent decisions, the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 required that VA examination reports include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The Court later explained that case law and VA guidelines anticipate that examiners will offer opinions as to additional functional loss during flare-ups of musculoskeletal disabilities based on estimates derived from information procured from relevant sources, including lay statements of veterans. It was noted that an examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran’s left and right foot callouses are rated under Diagnostic Codes 7819-5284. 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 evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, DC 5284 is used to evaluate other foot conditions. DC 7819, which governs benign skin neoplasms provides that the disability is to be rated under DC 7800 for disfigurement of the head, face or neck; DC 7801, 7802, 7804 or 7805 for scars; or impairment of function. 38 C.F.R. § 4.118. In this case, the Veteran's bilateral foot callouses, a condition of the skin, more notably causes impairment of function of the foot. Accordingly, such impairment of function must be considered in the assigned disability rating. Under DC 7819, a disability can be rated through the impairment of function and the impairment of function in this instance is best described through 38 C.F.R. § 4.71 (a), DC 5284 (other foot injuries). Under DC 5284, a moderate injury of the foot warrants a 10 percent evaluation; a moderately severe injury to the foot warrants a 20 percent evaluation; and a severe injury to the foot warrants a 30 percent evaluation. 38 C.F.R. § 4.71a. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. 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. The use of terminology such as “moderate” or “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. The Board does note, for reference and illustrative purposes only, that the definitions for “slight” includes small in size, degree, or amount. WEBSTER’S II NEW COLLEGE DICTIONARY at 1038 (1995). The definitions for “moderate” includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for “severe” includes extremely intense. Id. at 1012. In April 2013 the Veteran was seen for a VA examination to determine the severity of his foot disabilities. In addition to bilateral callouses, which the examiner noted are something the Veteran has had since the 1970s, the Veteran also had hallus valgus of his right foot, and bilateral hammer toe. The examiner did not find that the Veteran’s callouses caused any pain or tenderness. However, the examiner did not specify the severity of the Veteran’s callouses, nor did they differentiate between the symptoms of the callouses and the Veteran’s other foot disabilities. In April 2018 the Veteran was seen for another VA examination to determine the progression of his callouses, along with his other foot disabilities. The examiner found that there was no evidence of flare-ups related to the callouses, nor did the Veteran report any. However, the Veteran did report pain and swelling on use, especially when standing and walking. The Board notes that the examiner did not opine on the severity of the Veteran’s callouses, nor did they differentiate between the symptoms of the callouses and his other foot disabilities. The Veteran was afforded another VA examination in August 2020, per the Board remand directives. The examiner was unable to determine a baseline severity of the condition, but did note that the callouses cause “mild” pain with direct pressure. However, other than the pain, which prevents the Veteran from walking or standing for prolonged periods of time, the examiner found that the majority of the Veteran’s foot symptoms are due to injury and general laxity of the supporting structures of the feet related to trauma and poor fitting footwear. The examiner found that the Veteran’s non-service-connected foot disabilities are primarily responsible for the Veteran’s sharp foot pain and functional impact, and not his service-connected callouses or hammertoes. The examiner found that the Veteran’s current symptoms are due to osteoarthritis. The examiner determined that the Veteran’s callouses are “unrelated” to his other foot conditions. The Board finds that the Veteran’s callouses cause functional loss, particularly due to pain. The objective medical evidence and the supporting lay evidence shows that the Veteran has issues with walking and standing for prolonged periods of time, and while it is clear from the medical evidence that this functional impairment is primarily due to non-service-connected foot conditions (including hallux valgus, plantar fasciitis, degenerative changes of the bilateral 1st MTP joints, and fracture of the proximal phalanx of the left great toe), it is clear that there is some not clearly quantifiable functional impairment due to the Veteran’s service-connected bilateral foot callouses. The Board acknowledges that the Veteran’s bilateral callouses have resulted in pain which causes functional impairment. However, the record does not reflect there are any distinctive period(s) where such impairment met or nearly approximated the criteria of moderately severe impairment. Treatment notes throughout the appeal period show the Veteran complained of pain in both feet due to callouses. The Veteran’s long-standing complaints of discomfort are evidence of that fact; however, this lay evidence does not reflect any more severe level of disability particularly in light of the objective medical evidence of record. Thus, in light of the evidence of some functional impairment due to pain caused by his callouses, a 10 percent rating per DeLuca is warranted. The Veteran’s claim for a compensable rating for his left and right foot callouses is granted, and the Board finds that a disability rating of 10 percent is warranted for each foot. The Board finds that the Veteran does not meet or nearly approximate the schedular criteria for a rating in excess of 10 percent for either his service-connected left foot or right foot callouses as the evidence does not show they have a moderately severe impact on his functional abilities. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.