Citation Nr: 21004611 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-05 487 DATE: January 27, 2021 ORDER A disability rating greater than 20 percent for service-connected plantar warts and tender plantar callosities of the left foot is denied. A disability rating greater than 20 percent for service-connected plantar warts and tender plantar callosities of the right foot is denied. FINDINGS OF FACT 1. The Veteran’s service-connected disability of plantar warts and tender plantar callosities of the left foot is manifested by no more than moderately severe symptoms. 2. The Veteran’s service-connected disability of plantar warts and tender plantar callosities of the right foot is manifested by no more than moderately severe symptoms. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for service-connected plantar warts and tender plantar callosities of the left foot have not 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. 2. The criteria for a disability rating greater than 20 percent for service-connected plantar warts and tender plantar callosities of the right foot have not 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 from February 1971 to January 1973. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Muskogee, Oklahoma. The Veteran’s notice of disagreement (NOD) was received in May 2012. The RO issued a Statement of the Case (SOC) in December 2012. The Veteran’s VA Form 9, substantive appeal to the Board, was received in February 2013. In November 2016 and July 2018, the Board remanded the case to the RO for further development and adjudicative action. Increased Disability Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement that affects stability, standing, and weight-bearing. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Consideration must 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 provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, will only be considered in conjunction with diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual 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. 1. Entitlement to a disability rating greater than 20 percent for service-connected plantar warts and tender plantar callosities of the left foot. 2. Entitlement to a disability rating greater than 20 percent for service-connected plantar warts and tender plantar callosities of the right foot. The Veteran asserts that the currently assigned, respective, 20 percent disability ratings assigned to the service-connected residuals of plantar warts and tender plantar callosities, of the left and right feet, do not accurately reflect the severity each disability. The Veteran’s left and right foot disabilities are each rated under Diagnostic Code 5284 which provides the rating criteria for other foot injuries. Under Diagnostic Code 5284, a 10 percent disability rating is provided for a moderate foot injury. A 20 percent disability rating is provided for a moderately severe foot injury. A 30 percent disability rating is provided for a severe foot injury. 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. Words such as “severe” and “moderate” 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. A VA examination report dated in June 2011 shows that the Veteran provided a history of plantar warts and tender plantar callosities of each foot since 1971. The condition was not due to injury or trauma. He reported experiencing pain in the bottoms of his feet that was constant and severe. He described the pain level as nine on a scale of 10. The pain could be exacerbated by physical activity or come spontaneously. It would be relieved by rest and medication. He would have pain at rest and with standing or walking, but no weakness, stiffness, swelling, or fatigue. He denied ever being hospitalized or having any surgery. He was not receiving any treatment for his condition. He described his overall functional impairment as being unable to walk far or stand on his feet for very long. Physical examination of each foot revealed tenderness, without painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. There was active motion in the metatarsophalangeal joint of each great toe. Palpation of the plantar surface of each foot revealed slight tenderness. Alignment of each Achilles tendon was normal in both weight-bearing and non-weight-bearing. Pes planus and pes cavus were not present. No hammer toes were found on examination of the feet. Morton’s metatarsalgia was not present. Hallux valgus of each foot was present; the degree of angulation was slight with no resection of the metatarsal head present. Hallux rigidus was not present. He had limitations with standing and walking; he was able to walk a quarter mile. He did not require any type of support with his shoes. The diagnosis was plantar warts and tender plantar callosities of each foot, post-operative, with additional diagnoses of plantar fasciitis and hallux valgus. Objective factors included tenderness of the plantar surface of each foot with warts on the bottom of the foot and positive X-ray findings. The conditions did not affect his usual occupation. The impact on daily activity was that he could not walk far or stand long. A VA examination report dated in December 2012 shows that the Veteran was diagnosed with plantar warts and calluses. He reported that he continued to have the same calluses and plantar warts that were present during service, and had developed additional areas of calluses over the years. He also described experiencing constant pain, and that the calluses would require trimming at an orthopedic clinic. He would use a cane for assistance with ambulation. He did not wear any corrective shoes, shoe inserts, or braces. He estimated the pain in the warts at rest as an eight on a scale of 10. The pain would worsen with standing and walking. He could walk for about 100 yards and stand for about five to 10 minutes before the pain would become severe. He would take medication for his feet and hip symptoms. He did not have Morton’s neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, or other foot injuries. The functional impact of his foot disability was said to be limited prolonged standing and walking. He denied any change in his foot condition since his prior examination. Physical examination revealed multiple callouses on both feet. There was no redness, swelling, or drainage of the feet. The callouses were tender to palpation. The disabilities due to plantar warts and callouses of the right and left feet were said to be moderately severe. There was no evidence of loss of use of the feet. A VA examination report dated in January 2017 shows that the Veteran was diagnosed with plantar warts, bilaterally, with tender plantar callosities of the right foot. He reported ongoing pain of the plantar warts of both feet, estimated as an eight on a scale of 10, with standing and walking. He described sharp pain in the bottom of both feet. Flare-ups would occur with walking. He would use a walker to help assist with walking. He could not stand or walk for extended periods of time. He did not have Morton’s neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. He had mild plantar warts and callosities on each foot. The foot condition did not chronically compromise weight-bearing or require arch supports, custom orthotic inserts, or shoe modifications. He had one active lesion on the left foot and scattered hyperpigmentation of areas treated for warts, bilaterally. He also had mild callosities of the great right toe. There had been no surgical procedures. There was pain on physical examination, described as pain on weight-bearing and interference with standing. There was pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot was used repeatedly over a period of time, however, the degree of functional loss could not be determined without resorting to mere speculation. There were no other pertinent physical findings. He would regularly use a walker for help with ambulation. The functional impact of his feet was said to be difficulty standing and walking due to pain. The examiner added that there was tenderness with palpation of both feet. He would utilize a walker to assist with ambulation and would wear corrective shoes. There was hypopigmentation and hyperpigmentation areas on both feet from warts and excision of warts. There were mild calluses and dry skin on the right great toe. A VA skin examination report dated in September 2019 shows that the did not have a current skin condition. Plantar warts were not currently visible on examination, and the examiner indicated that the condition seemed to be resolved. The soles of the feet were totally smooth, without any growth. Foot callosities were minimal and associated with minimal tenderness. A VA foot conditions examination report dated in September 2019 shows that the Veteran was diagnosed with bilateral pes planus and left sided plantar fasciitis. The Veteran reported pain on weight-bearing. He did not have Morton’s neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, or other foot injuries. There was no functional loss due to the claimed condition. The Veteran did not use an assistive device. The examiner indicated that the soles of feet were totally smooth, without any growth or callosities. There was no pathology to render a skin condition diagnosis. The VA examiner further opined that it was less likely than not that the ongoing complaints of bilateral foot pain, numbness, and discomfort were manifestations of his service-connected bilateral residuals of plantar warts and tender plantar callosities. The examiner explained that plantar warts were small growths on soles of feet, caused by HPV. They may lead to callus formation for which he was already service-connected since 1972. However, as per examination, the warts had resolved. No new warts were visible. The calluses and tenderness were minimal. A diagnosis was not warranted. His current complaints seemed out of proportion to the pathology under discussion. His symptoms may be related to other non-service-connected conditions. The examiner agreed with the diagnoses provided by a 2016 Podiatry consult, including diabetes with neuropathy of the feet, bilateral flat feet, and plantar fasciitis. These foot conditions were medically well known conditions that compromise weight-bearing. It was likely that these conditions had a significant contribution towards the Veteran’s current symptoms. Although, it was not medically feasible to quantify symptoms caused by service-connected and non-service-connected conditions. The examiner added that it would be safe to comment that there were no plantar warts present, as they had been trimmed previously. There was minimal tenderness detected upon palpation of minimal callosities. A diagnosis was not warranted. The diabetic neuropathy, plantar fasciitis, and flat feet were more likely causing a great role in the current symptoms, probably up to 80 percent of the current symptomatology was said to be related to non-service-connected conditions. The examiner noted that while it was not medically feasible to exactly quantify what percentage was due to each condition, a best estimate had been provided. The examiner explained that the symptoms were distinguishable in that the non-service-connected foot conditions including diabetes with neuropathy of the feet, bilateral flat feet and plantar fasciitis, were medically well-known conditions that compromised weight-bearing, and attributed towards chronic foot pain. The plantar warts seemed to have resolved, and the foot callosities were currently minimal and associated with minimal tenderness. VA outpatient treatment records dated from October 2016 to February 2020 show that the Veteran was treated intermittently at a VA foot clinic for ongoing pain, numbness, tingling, and other foot symptoms that have been attributed to his diagnosed diabetes mellitus. Having carefully considered the evidence of record, the Board finds that the criteria for a disability rating greater than the currently assigned 20 percent for each foot have not been met. As indicated above, under Diagnostic Code 5284, the evidence must show that the foot disabilities are severe in order for the next higher 30 percent disability rating to be warranted. In this regard, on examination in June 2011, the disabilities were described as not having any functional impact. In December 2012, the disabilities were described as moderately severe. In January 2017, the service-connected disabilities were described as being mild, and on examination in September 2019, they were said to have resolved. There is no evidence of record to support that the service-connected plantar warts and tender plantar callosities had resulted in severe disability. As such, an increased disability rating is not warranted. The Board has considered rating the disabilities under alternate diagnostic code provisions, however, the evidence has consistently demonstrated that there was an absence of Morton’s neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. As such, ratings under Diagnostic Codes 5276 through 5283 are not appropriate. Consideration has also been given to the fact that the Veteran has apparently developed diabetic neuropathy of the lower extremities, as well as pes planus and plantar fasciitis. However, the VA examiner in September 2019 concluded that these were not related to the service-connected disabilities. The opinion of the September 2019 VA examiner is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. The Veteran has not provided any competent medical evidence to rebut the opinion or otherwise diminish its probative weight. The statements of the Veteran as to the extent of his current symptoms have been considered. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran’s symptoms have remained relatively consistent throughout the course of the period on appeal, as such, staged ratings are not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). There is simply no basis upon which to grant the Veteran’s claims. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Orfanoudis, 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.