Citation Nr: 21062602 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-34 360 DATE: October 8, 2021 ORDER A 30 percent rating for painful callouses of the right foot and a separate 20 percent rating for painful callouses of the left foot is granted for the entire review period on appeal. FINDING OF FACT For the entire review period on appeal, the Veteran has had five painful callouses on his right foot and four painful callouses on his left foot. CONCLUSION OF LAW For the entire review period on appeal, the criteria are met for entitlement to a 30 percent rating for the painful right foot calluses and for a separate 20 percent rating for the painful left foot callouses. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7819-7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1977 to January 1980 and from September 1980 to August 1984. This appeal to the Board of Veterans' Appeals (Board) is from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) which confirmed and continued the 0 percent (noncompensable) rating then in effect for the callouses on the Veteran's left foot as well as the 0 percent rating also then in effect for those on his right foot. In May 2019, the Board granted a higher (albeit aggregate) 30 percent rating for these left and right foot callouses for the entire review period under consideration. However, as for whether a rating higher than 30 percent is warranted for this disability, the Board instead remanded this remaining portion of the claim back to the RO (AOJ) for further development and consideration including especially to obtain and consider all relevant medical treatment records (VA and/or private) regarding this condition and, if a rating higher than 30 percent was not then granted, for provision of a Supplemental Statement of the Case (SSOC) containing the required summary of the evidence and applicable law and discussion of the reasons and bases for not granting any greater rating. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Since the prior grant of a higher 30 percent rating is not the maximum permissible rating, that increase in rating did not abrogate this appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Entitlement to a rating even greater than 30 percent Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. When evaluating a disability's severity, it is essential to consider it in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation is established and a rating increase is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings, then separate ratings may be assigned for separate periods based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates criteria for a higher rating than a lower one, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the criteria specified; however, expected findings will be sufficiently characteristic to identify the disease, the disability therefrom, and coordination of rating with impairment of function in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. As pointed out in the Board's prior May 2019 remand, certain aspects of the General Rating Formula for the Skin were amended effective August 13, 2018. For claims pending prior to that date, as here, ratings will be considered under both the former and revised rating criteria, and whichever is more favorable to the Veteran will be applied. However, the revised rating criteria cannot be applied before their effective date absent express indication otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). But, if more favorable, the former criteria may be applied both prior to and since the effective date of the change in rating criteria. Foot callouses are not specifically contemplated by the diagnostic criteria related to either skin or foot conditions. The Veteran's callouses initially were rated under 38 C.F.R. § 4.118, DC 7819, which provides that benign skin neoplasms should be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC 7801-7805, including DC 7804), or based upon impairment of function. Until the Board's May 2019 decision, each foot was rated separately at 0 percent. But the Veteran now has a single 30 percent rating (for both feet, so encompassing all his callouses) under DC 7804 because of what amounts to painful or unstable scars. The rating criteria under DC 7804 did not change after August 13, 2018, and state that one or two painful or unstable scars warrant a 10 percent rating; three or four painful or unstable scars warrant a 20 percent rating; and five or more painful or unstable scars warrant the maximum 30 percent rating. Additionally, if one or more scars are both painful and unstable, 10 percent will be added to the evaluation based on the total number or unstable or painful scars. 38 C.F.R. § 4.118, DC 7804, Note (2). The evidence of record shows the Veteran has five painful callouses on his right foot and four painful callouses on his left foot. He treats them with regular trimming, soaking, and use of shoe inserts. At VA skin examinations in June 2014 and May 2017, it was observed that his disability did not involve any exposed skin and less than 5 percent of his total skin area. In the May 2019 decision, the Board resultantly awarded the Veteran the maximum 30 percent rating for more than 5 painful foot callouses (since he has 9 total). There is no indication these callouses are "unstable" as contemplated by VA regulations. However, he and his attorney argue this disability warrants separate ratings for the callouses on each foot rather than one, aggregate rating. The Veteran's existing, single rating is consistent with rating methods established by the August 13, 2018 VA regulation change, which did not alter the rating criteria but proscribed assigning separate ratings for painful scars on bilateral extremities. Prior to that change, separate ratings were assigned for separate extremities, as evinced by his original, albeit 0 percent, separate ratings applied to each foot. However, revised Notes (2) of the current version of DCs 7801 and 7802 specifically state that ratings under those DCs may be assigned a separate evaluation for each affected extremity. The current version of DC 7804 does not contain this same note provision. As a result, current guidance in VA's Adjudication Procedure Manual (M21-1) circumscribes separate evaluation of bilateral extremities or assignation of bilateral factors based on bilateral extremities under 38 C.F.R. § 4.26, to only evaluations under DCs 7801 and 7802. The M21-1 is not binding on the Board's decisions, however. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017). But this change nonetheless again reflects how the new and prior regulations approach bilateral extremities differently. Returning now to the facts and circumstances of this case at hand and as previously stated, the Board found in May 2019 that the Veteran's service-connected callouses include five painful callouses on his right foot and four painful callouses on his left foot. If rated under the regulations in effect on November 29, 2013 the date of claim for service connection and the current effective date for his single 30 percent rating then a 30 percent rating would apply to his right foot and a separate 20 percent rating to his left foot, whereas, under the current regulation, just a single 30 percent rating applies for the entire period on appeal. As such, the rating criteria in effect prior to August 13, 2018, result in more compensation to the Veteran and, therefore, must be applied in this case. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.